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Full text of "Cobbett's complete collection of state trials and proceedings for high treason and other crimes and misdemeanors from the earliest period to the present time ... from the ninth year of the reign of King Henry, the Second, A.D. 1163, to ... [George IV, A.D. 1820]"

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C  OBBETT'S 


COMP  LETE   COLLECTION 


or 


State   Trials. 


VOL.  vin. 


f 


i-    :/ 


I    • 


COBBETT'S 

C  O  M  P  L E  T?  E    e^  L  L  E  C  T I  O  N 

•  -    ••••-       ••    * 


A   K  .  *     K  ^  V 


•       •  •     • 
» -      «       ' 


•       ••«••      •  ••      • 


•  .    •     • 


•  •    • 


OF 


State  Trials 


AND 

PROCEEDINGS   FOR  HIGH  TREASON  AND  OTHER 

CRIMES  AND  MISDEMEANORS 

FROM  THB 

L\RLIEST  PERIOD  TO  THE  PRESENT  TIME. 


VOL.    VIII. 

COMPRISING    THE    PERIOD 


FBOM    THE     THIRTY-SECOND    YEAR    OF    THE    REIGN    OF 
KIXG    CHARLES    THE    SECOND,    A.  D.    I68O,    TO    THE 
THIRTY-FOURTH    YEAR    OF    THE    SAID    REIGN, 

A.  D.    1682. 


LONDON: 

PB11CTED  BY  T.  C.  HANSARD^   rSTERBOROUGH-COURT,   Fl.fiET-STRBET. 

piLUHBD  BT  Ro  BAOSHAW,  BRYIIOB8-STRBET9  eOVBNT-OARDEN  ;  AND  SOLD 
I  IT  J.  BUDD,  PALIcMALL;  J.  FAULDER,  NEW-BOND-STREET;  SHERWOOD, 
iBULT  AMD  JONE89  FATBR-N08TER-E0W  ;    BLACK,   PARRY   AND  KINGSBURY, 

UDENUALL-STRBBT;  bell  and  BRADFUTE,  EDINBURGH;   AND  J.  ARCHER, 

rBLlN. 

1810. 


•  ■   • 


.   '  •      • 


HI"!     ' 


1  .'^H.Sf  >f; 


«i.i 


I  • 


V  . 


.•riif»     • 


TABLE   OF   CONTENTS 


T* 


VOLUME  Vllt 


STATE  TRIALS  IN  THE  REIGN  OF 
KING  CHARLES  THE  SECOND. 


*  * 


Pagt 
Proceed! NOS  tgainst  Kicharb  Tsompson*  Clerk,  for  a  High  Misde- 
mcanor  agaiott  ihe  Prifikge  of  Paiikment,  a.  d.  1680  ;N.]»..^ L 

tf75.    Caae  of  Jamei  SmiiE^  for  treasonable  Opinioiis  and  DecJarations,  a»  ». 

IMO  [N.] i « 12» 

W*^.    Case  of  Jotm  Nivin,  Ctt»tiiti  of  the  SIlip  t^eftulie  of  Loildoti,  for  LMftiug- 

makiag  against  James  Duke  of  Albany  and  York^  a.  d.   1680  [N.},..     4i0 

175.  Proceedings  in  PariiaiMnt  agaim  S^waaft  ttsTttotiR,  esq.  a  Mettber  of 
the  Honse  of  Commons  and  Treasurer  of  the  Navy*  upon  an  Impeach- 
oMnt  of  High  Crimes^  Misdemeanors^  and  OfTences,  a,  o.  I(y60 187 

Mtii.  Proceedings  againu  Lord  Chief  Justice  Scaooos  before  the  Priry  Covn- 
cil ;  and  against  the  said  Lord  Chief  Justice  and  other  Judges  in  Par- 
Gament,  a.  d.  16M • •• ,,..     it% 

177.    PhKeediags  ia  P^Uameni  against  Edwabd  FiT»iABais»  upon  an  Im- 

poM  iiwf la  for  High  Treason,  a.  d.  Ii08i «..«...oti.« SSI 

Proceedings  agninit  Edwabo  FitsSAmaia  in  ihe  King^s-Bcncfa,  opwi 
hie  Arraignment  and  Plea  to  an  IndictmtBt  for  High  IVmson, 
A.B.10SI1 •••••• Ml 


TABLE  OF  CONTENTS. 

Page 
A  Naekatitb,  being  a  true  Relatioii  of  what  Discoarse  passed  be- 
tween Br.  Hawkins  and  Ebward  FinHARRis,  esq.  late  Prisoner 
in  the  Tower ;  with  the  Manner  of  taking  his  Confession  [N.]      500 

Truth  Vindicated  :  or  a  Detection  of  the  Aspersions  and  Scandals 
cast  upon  Sir  Itobert  Clayton  and  Sir  Gearg^  Treby,  Justices : 
and  Sliiigsby  Bethell  and  Henry  Cornish^  esqrs.  Sheriffs  of  *  the 
City  of  London^  in  a  Paper  published  in  the  name  of  Dr.  Francis 
Hawkins,  Minister  of  the  Tower»  intituled  '  The  Confession  of 
«  Edward  Fitaharris/esq.'  fcc  [N.] 411 

Remarks  on  Fitsharris's  Trial,  by  Sir  John  Hawles,  Solicitor  Ge- 
neral to  King  William  the  Third  426 

S7S.    The  Trial  of  Dr.  Olitsr  Plunket,  Titular  Primate  of  Ireland,  at  the 

I^ng's-Bench,  for  High  Treason,  a.d.  1681 ; 447 

in9.    The  Trial  of  Sir  Miles  Stapleton^  bart.  at  York  Assizes,  for  High  Trea- 
son, A«D.  1081    ....'. • 508 


iBO.    The  Trial  of  George  Birssr,  isit  Derby  Assfaes,  for  High  Tireason,  being 

a  Romish  Priesty  a.o.  1681,  •f«* • 526 

981.    The  Trial  of  Stefhen  Coixippx,  at  Pzfoni«.for  High  Treason,  a.  d. 

1681     550 

Remarks  on  Colledob's  Trial,  by  Sir  John  Hawlbs,  S61icit6r- 
General  in  the  Reign  of  King  William  the  Third    723 

2ifi,  The  Trial  of  Slingsby  Bethel,  esq.  at  the  Bridge-House  in  Southwark, 
for  an  Assault  and  Battery  on  Robert  Mason,  at  the  Election  of  Mem- 
bers of  Parliament  for  the  Porongh  of  Southwark,  A.  o.  1681    747 

9B3.  Proceedings  at  the  Old  Bailey,  upon  a  Bill  of  Indictment  for  High  Trea- 
son, against  Anthony  Earl  of  Shaftesbury,  a.  d.  1681     .>•    759 

Remarks  on  the  Earl  of  Shaftesbury's  Grand  Jury.     By  Sir  John 
Hawlbs,  Solicitor  General  in  the  Reign  of  William  HI 835 

284.    The  Trial  of  the  Earl  of  Argylb,  in  Scotland,  for  Treason,  a.  d.  i68  1 84S 

255.  Proceedings  before  the  King  in  Council,  against  Arthur  Earl  of  Ancle- 
SEY,  Lord  Privy  Seal,  upon  account  of  a  Book  reflecting  on  the  Con- 
duct of  James  Dake  of  Ormond,  Lord  Lieutenant  of  Ireland,  a.  d. 

1682  [N.] , 990 

2^0.    Proceedings  against  Tbmpbrancb  Lloyd,  Mary  Trbmblbs,  and  Susanna 

BawARDs,  for  WitcfacnA;  a.d:  1682  |,N.] ..••...;•.... 1018 


%  ■  •  ♦ 


«-. 


TABUB  OF  C0NTEN1& 

3B7.  Proceeding!  between  the  Kino  and  the  Citt  or  Loin>oii«  on  en  Informa- 
tion in  nature  of  a  Quo  Warramto,  in  the  King's  Bench,  a.  n. 
1681 — 168S 1039 


M.  The  IVial  of  Nathaniel  Thompson^  William  Pain,  and  John  Farwbll, 
at  the  Guildhall  of  London,  for  writing,  printing,  and  publishing 
Letters,  importing  that  Sir  Edmundbury  Godfrey  murdered  himself; 
as  also  for  sereral  Falsities  relating  to  the  said  Matter  printed  in  seve- 
ral Papers,  called  **  The  Loyal  Protestant  Intelligence,''  a.  d.  1682  •••  I3M 


COBBETTS 


,  •.     IV' 


COBBETT'S 

COMPLETE    COLLECTION 


OF 


State   Trials. 


272.  Proceedings  against  Richard  Thompson,*  Clerk,  for  a 
High  Misdemeanor  against  the  Privilege  of  Parliament : 
32  Charles  11.  a.  d.  1680. 


HoisE  or  CoMMom,  November  9, 1680. 

Ordered,  That  RkhardThompson,tclei^ 
he  irot  Ibr  ia  custody  of  the  serfeaot  at  anns 
MfeD^Bg  this  UouWy  to  answer  at  the  bar  of 
Ab  Hooise,  for  his  high  Misdemeanor  against 
ik  hivQege  of  this  Honse.t 

*  *  I  appoint  Frsncts  Smith,  and  Bemamin 

*  &nw,  to  print  this  Report  and  Resomtion, 

*  pnacd  by  me,  according  to  the  Order  of  the 

*  msK  ot' Commons :  Aad  that  no  other  per- 

*  «ft  presome  to  print  the  same,  December  24, 
'  too.  W.  WiLUAMs,  Spttker.* 

tOUoiixon  calls  this  Thompson  a  "  noisy, 
halEfl!.  ienorant  priest,"  and  adds,  **  I  talce 
ikanv  lILerty  wiUi  him  because  I  Imew  him." 
binean  that  the  king  soon  after  these  pro- 
(Mm^s^  made  him  dean  of  Bristol. 

1 1  ha«e  not  foand  In  the  Journals  any  ear- 
Ker  fDtn'  concerning  this  matter  of  Richard 
Thmpsun,  nor  does  it  appear  so  distinctly  as 
■i^k  be  vrisbcd  in  what  resjiects  his  **  high 
•rtnneanur"  was  "  against  the  privilege  of 
Ac  HoQiie.'* 

h  if  obs^nrable  that  Mr.  Justice  Blackstone, 
■, ipcaking  of  Privilege  of  Pariiament,  seems  to 
SKdK  term  in  its  more  confined  sense,  of  an 
■Boarty  or  exemption  from  such  direct  inter- 
i^faoQM  and  niokirtations,  as  obstruct  the  ezer- 
Ms  ol'  iha  functions  ot*  nariiament,  and  from 
I  Ai  labUny  to  hare  their  medom  of  speech  and 
tasa  aoiil  prrKMsedings  in  parliament  impeach- 
^jlw^iKsbdoed  in  any  coutt  or  ulace  out  of  par- 
He  docH  inuped  say,  tnat  to  assault  by 
I  member  of  either  House  or  his  me- 
raut  is  a  hicj^  contempt  of  pariiament, 
Mtti-nr  punished  with  the  utmost  severity : 
[MviUi  this  exception,  he  seems  to  contem- 
afl  tlieir  pririWgcs,and  especially  when  he 
b  d'lhetr  indefiniteness,  (bee  the  note  to  tlie 
ttl>ihiriey  aod  Fag^g*  anfff,  toI.  6,  p.  1  If  1.) 

VttL  VIII, 


December  8. 

A  Petition  of  Richard  Thompson,  clerk,  in 
custody  of  the  setjeant  at  arms,  havinff  been 
read,  it  vras  ordered,  That  the  consi&ntion 
thereof,  as  also  of  the  matter  oi*  the  complaint 

as  possessed  by  them  almost  exdusivdy  for  the 
purpose  of  protection  from  attacks  of  preroga- 
tire.  And  of  such  privileges  it  may  he  tndy 
said,  in  the  words  of  the  i^monstrance  and  Pe- 
tition presented  to  Charies  the  First  by  both 
Houses  on  Dec.  17th,  1641,  (Sec  1  Clarendo:i's 
Hist  of  the  Rebellion,  S28.  8vo  ed.  2  Cobb. 
Pari.  Hist  978.)  that  <'  they  are  the  Urth-right 
and  inheritance  not  only  of  the  two  Houses  of 
parliament  but  of  the  >vho1e  kin^om,  wherein 
erery  one  of  the  king's  subjects  is  intcrei^ed  ;** 
but  it  is  by  no  means  clear  that  this  mrvy  witli 
equal  truth  be  said  of  an  uncontmll^^l  discre- 
tionary power  in  each  House  of  parliament  to 
imprison  for  whatever  such  House  of  ^liament 
shall  adjudge  to  be  a  contempt  towards  itself: 
more  particulariy  if  a  like  uncoiuroUed  discre- 
tionary power  in  courts  is  to  be  supported  bj 
analogy  to  this. 

Upon  the  whole  matter  it  may,  perhaps,  ba 
safely  said  that  whatever  be  the  extent  ot  par- 
liamentary privileges,  every  patriotic  member 
of  parliament  will  concur  in  the  sentiment  ex- 
pressed by  the  learned  and  upright  sir  Robert 
Atkyns  in  the  Case  of  lord  Clarendon.  (SkmwiA^ 
6  of  this  ColU.H:tion,  p.  355).  "  Though  privi' 
lege  is  much  spoken  of,  I  snail  never  faS  fond  of 
any  privilege  which  shall  intrench  upon  my  li- 
berty as  a  subject :"  and  that  every  wise  House 
of  Commons,  knowing  that  confidence  and  af- 
fection between  them  and  the  body  of  the  peo- 
ple is  the  great  foundation  of  their  dignity  and 
importance  in  the  state,  will  be  very  abstemious 
in  the  oxercise  of  any  power  by  ^*  hich  tliat  oon- 
fidenc*e  and  aficctioii  is  liable  to  be  diminished  or 
impaired. 

B 


3]  STATE  TRIALS,  32  Charles  II.  l680. 

for  \vhicli  he  stooil  coniinilteil,  shoulil  hv  rofi-ired  ^ 
to  a  coiuniitlf-c  to  examine  tiu'  niattcT  tlion'ot', 
antl  to  nport  the  same,  vith  their  o|)iiiUMiii 
therein,  to  ihe  House. 

Vtctnihtr  2S. 

Coloml  Birch  reports  (Vom  thi^  rommitlee  to 
whom  the  e\amiiKition  oi'ih<'  eoinpluint  o^iiist  i 
Hielianl  Thompson,  elerk,  was  reierred,  Tliat 
the  eoiiiiiiitt("<.'  havin;;^  taken  ihe  same  into  iheir  ; 
ronsiikration,  had  directed  hiin  to  make  a  sjie-  ! 
ciai  Report  thereof  to  the  H(»iise:    \«hirh  he 
read  in  hiN  plaee,  and  ahen^ards  deKvercd  the  ! 
samo  in  at  the  elerk*s  table.  ' 

Onlered,  That  the  said  Ke(K)rt  be  read  at  the 
table  to-morrow  moniiu!;. 

December  24. 

The  Report  fi(»m  the  Comniittee  of  the  Com- 
mons in  Parliament,  appointed  to  consider 
the  Petition  «»f  Itichanl  Thomitson,  atul  to 
evamine  the  matter  of  the  Complaint 
ag;aiiist  him. 

Tn  the  iirst  pluer,  the  committee  read  inito 
the  said  Tlioinp.si;n,  the  heads  of  the  comolaints 
against  him ;  which  (for  the  most  part)  he  de- 
nying, desired  to  have  hi^i  accnsei*s  brought 
tdce  to  face:  wheitnipoii  the  committee  pro- 
ceeded totlie  examination  of  witnesses,  to  prove 
the  said  complaint. 

The  first  ^Vitness  examined,  saith,  Tliat 
there  being  a  gix'ut  noise  aiui  rumour,  that  Mr. 
Tliompsonnacf  preparctl  a  Kernion  to  be  preach- 
ed on  the  .30th  of  January,  1679,  the  said 
witness  went  to  tiie  saiil  sermon,  antl  did  hear 
Mr.  Thompson  publicly  declare,  that  the  Pres- 
Nyteriaus  weru  suc:h  persfins,  as  the  very  devil 
bhiflheil  :it  them  ;  and  that  tlie  rillaiii  Hamp- 
den gi*nd;^l,  and  maile  it  more  scruple  of  c(Mi- 
9ci«)nre,  to  vfive  twenty  shillings  to  the  king,  for 
supplying  his  neressities  by  Ship-money  and 
Loan,  whit  h  was  his  right  by  law,  than  to  raise 
rebeliivn  u'^aiiist  him.  Aitd  that  the  Presb^'te- 
riansure  \for>-e  (aiwl  fur  more  iutohruble)  than 
€i'iher  pdesls  or  Jesuits. 

The  second  saitli,  That  hearing  a  fcveai  talk 
and  noise  spriad  nf  a  sermon  to  be  preachiHl  by 
Mr.  Thomp.^in,  on  the  ."Oth  of  January,  1670  ; 
be  was  niiml<*d  io  hiartlu^  same,  and  aeeoiding- 
ly  did  ;  atMhich  he  urit  some  notes:  amongst 
which,  he  siiith,  that  iMr.  Thompson  openly 
preached,  that  the  dcy  il  blushed  at  the  i*reAhy- 
terians ;  and  that  thg  villain  Hampden  grudge«l 
more  to  give  the  king  tw4Mity  shillings,  which 
was  his  just  thie  by  la\t  (Ship-moiuy  and  I^an), 
tlian  to  i;^si^  CL'lK!lii(in  against  hiin  ;  and  tiiat  u 
Presbytenan  brother,  </w<«  /«/«,  was  as  gK.-jit  a 
traitor  by  the  statute,  as  any  priec»t  or  Jesuit 
wlwil-socCer,  That  he  lunir<l,*that  Mr.  Thomp- 
son  said,  t!iut  ho  luiped  the  Pria>byterians  would 

In  sir  Edwin  Sandys's  Case,  Mr.  Chanct'llor 
of  the  Dutchy  wisely  observed,  *  It  is  an  easier 
'  matter  to  raise  an*  inflammation  by  tlie  spe- 
*  cious  title  of  privib^'S  than  to  allay  it  ogam.' 
See  Proceedings  ami  Debates  of  tlie  House  of 
ConuuoDs  ia  1620,  and  1621,  vol.  S,  p.  259. 


.'^Proceedings against  R.ThompsOH'^  [ 

be  pulletl  out  of  their  houses,  and  the  gaols  filh 
>vitn  them  :  and  wishuil  their  house's  burnt. 

The  third  snith,  lliat  he  was  citetl  to  tl 
BishfipN  (.'ouil,  to  riHvife  the  Stu'inment  la 
Easter  ;  but  being  out  of  ti>un  at  that  time,  d 
ntceive  it  at  a  place  caHe<l  Purl  in  ^\'ilt5hirc 
and  that  a  month  ai^er  he  came  htmie,  wi 
again  cited  to  the  said  Court,  and  lie  did  accon 
iiigly  appear,  ai:d  told  the  Court,  that  he  hopi 
his  absence  and  biisini>ss  might  Ite  accepted  fi 
a  lawful  excuse  ;  upon  \\hich  Mr.  Tliompsi 
innnediatcly  said,  that  they  would  pi-oceed 
exconmiunicate  hhn.  Ujpon  which,  this  ii 
formant  produced  his  certificate,  of  which  tl 
Chancellor  approveil,  and  said  it  was  lawfi 
Hei-eupon  Mr.  Thom^ison  said,  that  his  recei' 
ing  the  fekicrament  from  any  otlier  ministc 
than  tbe  mini.ster  of  the  parish  wherein  1 
dweUed,  w\\%  damnation  to  his  soul ;  and  th 
he  would  maintain  this  doctrine. 

The  ibiutli  saith,  That  being  at  Brisl 
fair  he  heard  a  great  talk  and  noise  of 
Hatire -sermon  pi-epared,  and  designcil  to  1 

{ireached  by  Mr.  Thompson  against  the  Pre 
i^ierians,  on  the  SOth  of  January,  1679  ;  ai 
tfiat  very  many  resnrtetl  to  hear  bim :  in  wkii 
sennou  the  said  Mr.  Thom|Nion  declared  ai 
said,  that  there  \«'a.s  a  great  talk  of  a  pk>t :  b 
(says  he)  a  Pi\!sbvterian  is  tlie  man ;  and  iv 
ther  added,  that  tfie  villain  Hampden  scrupli 
to  give  the  king  20j(.  upon  Ship-money  ai 
Loan,  which  was  due  by  law,  l»ut  did  not  scai 
pie  to  raise  rebellion  against  him. 

The  fifth  saith.  That  Mr.  Thompson,  ia 
sermon  preached  tlie  SOth   of  January,  167 
did  say,  Uiat  the  presbyteriaus  did  seem  to  M 
vie  Mariana,  and  that  Cah  in  was  the  flnl  Ihi 
preai>hed  the  king- killing  doctrine ;  and  A 
afU'r  he  had  quoted  Calvin  oiten,  said,  if  this  I 
true  then,  a  Presbyterian  bnrthcr,  qua  taliiy 
as  great  a  traitor  as  any  ]n*iest  or  Jesuit :  ai 
that  then  he  condemned  all  the  in'occedings 
[Hirliament. 

The  sixth  saith,  Tliat  he  the  said  Mr.  ThoiH 
son,  had  utteivil  many  scandalous  wordu  co 
corning  the  act  tor  burning  in  woollen  ;  aflSif 
ing,  that  the?  makers  of  that  law  ^u-re  a  c«i 
pany  of  old  foi»ls  and  fanatics,  aiul  tliat  1 
w<iuld  bring  a  school-btty  should  make  a  beM 
ad  than  that,  and  construe  it  \%h«'n  he  hud  doi 

The  seventh  saith.  That  Mr.  Thom|i8on  il 
SfTiuon  by  him  preaelu^l  (while  petitions  i 
sitting  oi'  this  |iarliament  weit^  on  ttiot)  spca 
ing  of  a  second  rebellion  by  the  ^H.*otc:fa,  w! 
ha<l  frametl  a  formidable  aimy,  and  oaiue 
far  as  Durham,  to  deliver  a  petition  foraoolj 
and  that  they  seemed  ratlu'r  to  command  fh 
petition  their  sovertign  to  grant ;  and  compi 
mg  that  i>etition  with  the  then  petition  on  fo 
greatly  invciglied  against  it,  and  scoffed  nm 
at  it. 

The  eighth  saith,  That  Mr.  Thompson  (wli 
the  [lotition  was  on  fi>ot  tor  the  sitting  if  tl 
parliament)  used  at  the  funeml  sermon  of  I 
Mr.  Wharton  these  words  {pointing  at  the  A 
said),  that  he  was  no  schismatical  petitiaM 
rebel,  aadtUit  by  his  iogtigatioin  tne  gen 


STATE  tHIALS,  32  Crahles  II.  leso.^Prhilege  of  Parliammt.         [G 


Bristol  made  a  pesentment  of  their 
on  against  petitioning  for  the  sitting  of 
uneat;  that^e  said  Mr.  Thompson 
him,  that  he  was  governor  to  Mr. 
vhcn  he  was  beyond  sea ;  and  said, 
had  been  vety  often  (and  above  one 
times)  at  mass  in  the  great  chiirch  at 
d  usually  gave  half  a  crown  to  get  a 
bear  a  certain  I>octor  of  that  church, 
fie  was  like  to  be  brought  over  to  that 
and  that  when  he  went  beyond  sea, 
yvw  but  that  he  miffht  be  of  that  re- 
ore  bis  return.  That  ht  is  very  ceu- 
ind  frequently  casts  evil  aspersions 
reral  di^-ines  at  Bristol  (»f  great  note, 
?hctwind,  Mr.  Standfost,  Mr.  Cros- 
.  Palmer,  and  others,  saying,  that 
'eot  to  their  lectures  were  the  brats  of 

nth  saith.  That  Mr.  Thompson  in  his 
r  inveighed  bitterly  against  subscrib- 
>ns  for  sitting  of  this  parliament,  say- 
it  was  the  seed  of  rebellion,  and  like 
one ;  and  that  the  devil  set  them  on 
id  the  devil  would  pay  them  their 
aying',  that  before  he  would  set  his 
iich  petitions,  he  would  cut  it  off,  yea 
bem  off. 

nth  saith,  Tliat  about  two  years  since, 
he  chancel  of  8t.  Thomases  church  in 
"here  queen  Elizabeth's  effigies  is,  Mr. 
n  pointing  his  finger  to  it,  said,  that 
he  worst  of  women,  and  a  most  lewd 
noos  woman ;  upon  which  this  in- 
replied,  he  never  neard  any  speak  ill 
thereupon  Mr.  Thompson  said,  she 
ctter  than  a  church-rubber,  and  that 
legun  it,  and  that  site  fmished  it. 
eventh,  Howe,  saith,  That  in  the  year 
waitcil  on  the  mayor  to  church,  and 
Thompson,  who  was  there,  railed  at 
a^ing,  he  did  more  hurt  in  robbing  the 
Dfis,  than  he  did  good  by  the  refor- 
That  afler  dinner,  Mr.  Thompson 
this  informant,  and  claps  his  hands  on 
Iders,  saying.  Halt,  boy,  had  queen 
I  been  living,  you  needed  not  to  have 
rd- bearer  of  Bristol,  llie  said  Howe 
0  why  ?  He  rpp]ie<l,  She  loved  such  a 
oe  (so  wfrll)  as  he  was  ;  and  he  would 
a  very  fit  for  her  ihiidgery  at  IVliite- 

rdfth  saith.  That  he  heard  a  great 
a  sermon  tf>  br;  preached  by  Mr. 
•  oothe  SOth  of  Jaliuary,  1679,  to 
d  put  of  tlie  same  tune ;  and  that  he 
ni  9X  the  same  sermon,  in  which  Mr. 
ft  aaid,  tliere  was  a  gn>ut  noise  of  a 
hi,  but,  sa^r-s  he,  here  is  nothing  in  it 
■Ajterian  Plivt ;  for  here  they  art? 
■t  to  petition  for  the  sitting  of  the  |nir- 
^*  ihft  end  of  it  will  lie  to  bring  the 
io  the  block,  as  they  have  done  his 

audi  laith,  That  in  January  last, 
if  then  was  a  petition  going  about 
(  cCthis  perhwnent^'whcn  Mr. 


Thompson,  in  Retlcliff  church,  in  his  sermon 
said,  it  ^'as  a  seditious  and  rebellious  petition, 
and  rather  than  he  woidd  sign  it,  his  hand 
should  be  cut  of{l 

The  fourteenth  saith.  The  8tli  day  of  April, 
he  ^iug  to  pay  Mr.  Thompson  his  dues, 
speucing  i^onceniing  the  meetcrs  in  private  ; 
Blr.  Thomjison  said,  he  would  haul  them  out, 
and  fill  the  gaols  ^vith  them,  and  hoped  to  seu 
their  houses  a  fire  about  their  ears  m  a  shoit 
time ;  and  tliis  he,  the  said  I'hompson,  dou- 
bled again  and  again. 

Tlie  fifteenth  saith,  Tliat  about  December, 
1679,  Mr.  Tliompson  came  to  visit  his  mother, 
being    sick;     and     discoursing    of    religion, 
Tliompson  said,  if  he  were  as  welt  satisfied  of 
other  thin^,  as  he  was  of  justification,  auricu- 
lar confession,  penance,  extreme  unction,  and 
chiism  in  Itaptism,  he  would  not  have  been  so 
loB^  separated  from  the    Cutholic    Church. 
And  further  affirmed,  that    the  Church    of 
Rome  was  tlie  true  Catholic  Church.     Ha 
further  endeavoured  to  prove  extreme  unction, 
and  auricular  confession,  as  well  as  he  could, 
ont  of  the  Epistles.     Further,  he  hath  heard 
him  say,  the  king  was  a  person  of  a  mean  and 
soft  tenii>er,  and  could  be  led  easily  to  any 
thing,  but  yet  a  Solomon  in  vices ;  but  tliat  the 
duke  of  \  ork  was  a  prince  of  a  brave  spirit, 
would  be  faithful  to  his  friends,  and  that  it  was 
our  own  faults  tliat  he  was  a  Roman  catholic, 
in  that  we  forcetl  him  to  fly  into  France,  where 
he  embi*aeed  that  religion.     About  the  same 
time,  he  the  said  Thompson  said  the  church 
would  be  militant ;  but  greatly  commended  the 
decency  of  solcumizing  the  mass  in  Fiance ; 
and  that  it  was  |)erformed  with  much  more 
reverence  and  devotion  than  any  other  religion 
doth  use.     He  further  hoard  him  say,  in  a  Sct- 
mon,  about  the  time  of  petitioning,  he  would 
rather  cut  off  his  hand  than  sign  it,  and  had 
many  bad  expinssions  of  it ;  that  it  was  the 
seeil  of  rebellion,  and  like  forty  and  Ibrty-one. 
And  further,  the  said  Mr.  Thompson,  at  one 
Sandfoi-d^s  shop-diKir  in  Bristol,  spoaking  of 
Bedloc,  said,  that  he  wfis  not  to  be  believed, 
bcf^ause   Bedloe  had   said    he,  meaning  Mr. 
ThomjMon,   was    at  St.   Omer's,  whom  Mr. 
Thompson  said  he  was  not ;  and  that  Bedloe 
was  of  a  bad  life,  and  in  many  Plots,  and  not 
to  be  credited  in  any  thhig  he  said.    And  tliat 
in  another  discourse  he  ctmunended  the  Rom- 
ish clergy  tor  tlieir  singk*  hfe,  and  is   him- 
self so  ;  and  did  at  the  same  time  vilify  and 
rail  at  the  English  clert^y  for  mairying ;  say- 
ing, it  was  bctler  for  u  ch'rgynian  to  he  gelt 
ihan  to  many ;    and  that    tlie  Calvinists  in 
France  were  l^clierous  fellows,  and  could  scarce 
l)e  two  years  a  priest  without  a  m  lie.     About 
the  time,  an<l  af\er  the  election  of  sir  Jolm 
Knight  to    this  pavlianient,    Mr.  Tliompson 
said,  he  was  not  ht'to  he  iK-lioved,  and  as  bad 
as  any  fanatic.     He  fultlH^r  said  in  the  pulpit 
at  Mt.  Thomases,  that  after  excommunication 
by  the  bishop,  witliout  absolution  from  th6 
spiritual  court,  such  a  one  was  surely  damned; 
and  he  would  pawn  las  soul  for  tin'  trutli  of  it. ' 


7]  STATE  TRIALS*  32  Charles  il.  iGso.^Proceedingi^gahut  R.  Thompson-^  | 

Evidence  ended ;  Mr.  Tliompsonf  afler  tlie 
evid^ce  given  by  every  particular  person,  face 
to  face,  ^'us  asked  to  crery  one,  if  he  had  any 
micstioas  to  ask  before  tliey  called  another  P 
Who  answered,  he  should  w»t  say  any  thing'  at 
|»iCM*iit.  When  tlie  \%itiit»s.ses  before-mention- 
<'(.!  wei-c  all  exainini^,  IVIr.  Tliom|j5on  being  de- 
si  reil  to  nuike  his  deteuce,  and  tleclare  wnellier 
Iv.:  were  t^iilty  of  the  niattem  laid  to  his  cliarge, 
did  for  tiie  greatest  {>art  confess  words  spoken 
to  that  cftect ;  and  in  other  thiiics  endeavoured 
to  tnni  the  words  with  more  favour  towards 
himself;  hut  tlie  witnesses  being  of  great  cre- 
4lit,  and  many  more  being  ready  to  have  made 
good  the  same  tilings,  the  Committee  Icxdicfl 
upon  the  business  to  be  of  a  high  nature ;  and 
therefore  ordered  the  matter  to  be  reported 
fipet-ially,  leaving  it  to  the   wisdom   of  the 


very  justly  odious  as  he  was  to  the  majority  < 
his  sulgects — ^without  a  House  of  Commons  \ 
carry  on  his  government  during  the  four  la 
3'earsof  hislile. 

In  his  '  Declaration  to  all  his  loving  subject 
touching  the  causes  and  reascins  tlmt  niov< 
him  to  dissolve  the  two  last  imrlianicnts*  (whic 
Declaration,  his  majesU'  in  council,  on  the  81 
of  April,  1681,  ordered  to  be  printed  and  pul 
lished,  and  read  in  all  churches  and  cliapc 
throughout  the  kingdom,  and  which,  as  it  a] 
pears,  was  drawn  up  by  lord  chief  justii 
^iortlk)  he  specially  mentions  in  the  catalogi 
of  the  vicrious  measures  of  the  House  of  Con 
moiLs,  <  arbitrary'  orders  for  taking  our  sul 
jects  into  custody,  for  matters  that  had  no  n 
lation  to  Privileges  of  Parliament.* 

The  mention  of  this  matter  by  two  of  tl 


House.  contemporaneous  historians,  Roger  Coke  ai 

A  A  L.^^     •  •      •   Ai    TT        Ai        ^^  Jtoger  S'orth,  is  curious  and  iierhaps  instrai 

A  debate  arising  m  the  House  thereupon ;         .-.J^,  '  *        '^ 


tive 


Resolvetl,  neni.  eon..  That  Richard  Thomp- 

majesty 

f^'4!*^^!-.J"iT"T    ^•"''^7.'    "Jj    Tr^!J  searching  into  the  discovery   of  the  "Popi 

popish  pi  ,ncii.les,  decrying  the  Pop  sh  PK  p,^^    J^  exasperated  agaiiit  the  Tories,*^fi 

1«:  IT"^  *'T'.'*'"k  Tl\  '^n  JT?  ?™'  ridicijing  the  Popish  PlS^  and  for  abho;ri« 

nni^-iT'"'';-^""^^'^^^^^^  ptitionincr  the  king  to  le^  the  parliament  m 

perty  of  the  subject,  and  the  rights  and  pmi-  1^  ^^^^  ^^  prosecute  and  secure  the  natic 


fo^^tloii     promoted   Pope^v,    by  asserting    :LSn;^r  S^c^V  o^t^^^^^^^^ 


Oiilered,  Tliat  a  Committee  l>e  appointed  to  ters,  and  of  the  Coiniiious  of  this  parliame 

pre[)are  tlie  said  lin|>eachiiient.     Anil  it  is  re-  against  the  Tories,  should  be  taken  for  preo 

ferred  to  sir  Win.  Jones,  and  others :  And  the  dents  by  any  parliament  in  time  to  come. 

Maid  Committee  is  imfiowered  to  receive  further  *Ml1ien  parliaments  met  annually,  or  i 

informations  a^^ainst  ihe  said  Richanl  Tliomp-  lea-s-t  fi-eqiioiitly,  I  think  cnm])laint  (^annot  I 

sou:  And  to  send  for  persons,  papei's,  and  recortls.  found  against  any  man  for  Rre<ich  tif  PrivileiTi 

r             r    .-co«  hut  when  there *were  lonijiiitenals  of  parUi 

January  5,  1681,  ^      ^            i           *i     ^                             i 

^    '  ments,  from  whence  the  consequence  resolve 

A  Petition  of  Richard  Thompson,  clerk,  in  into  lonr^  sittings  of  parliaments,  which  begs 

custody  of  the  Srrjeiiut  at  Arms  attending  tliis  in  the  n'igii  of  Henry  B,  then  the  inconvenieni 

Uousf*,  was  r(*ad.  of  privilege  first  began ;  nor  do  I  finil  any  Im 

Ordore<l,  That  the  said  Serjeant  at  Arms  be  fore  the  latter  end  of  Henry  8,  nor  does  31! 

imp<iwerf^d  to  reeeivf  suiiicient  security  for  the  Petit,  in  his  Preceilents  [of  ftxemptions]  froi 

forthcoming  of  the  said  Richard  Hionipson,  to  arrests,  and  other  privileges  of  parliament 

answer  to  tlie  Impeachment  of  this    House  men,  cite  an}  iK'fore  Uie  GUh  of  Henry  8,  i 

against  him.  case  of  'Mr.  George  Ferrers,  bui^j^ess  Vor  tl 

The  Parliament  was  soon  aHmvanls  Jis-  l°„'i'l,f  "yrL"*'';"*"*!  "'^^i*"'".i'^'! 

■olve.1,  an.l  I  havo  not  foun.l  in  the  Journals  ^^  """  '*"*  *"'«'"  *"'  ""=''*  "«»r".V.  «l«t  I 

„^„    1  I             ^                 ,-             ••*.  .^  «iiii«ia  takes  up  near  seven  naffes  to  recite  the  pre 

T^Tomn^n'           P"^''"*;^*    "«.-»"»'    »''"  ceding^  of  th«  <;onZn8  «,K.n  it ;  and  L 

*^  *  the  king  lieing  advertised  there(»f,  called  tl 

Chancellor,   the  Judges,  the  S|M«ak(M-  of  tl 

■ Commons,  and  the  gravest  |»erKons  of  tlieu 

wherein  he   commended  the  wisdom  of  tl 
Commons  rn  maintaining  their  privili'Sfi^,  ai 

It  should  be  noticed,  tliat  at  the  time  when  that  the  privileges  of  parliament  extend  to  tl 

this  Case  occurred,  the  House  of  Commons  servants  of  the  Commons  from  arrests,  as  vn 

praetiseil  commitments,  as  for  Breach  of  Pri-  as  to  the  iiersoiis  of  the  Commons.     It  is  woi 

vilegc,  with  a  frcqui^ncy  and  extent  which  seem  thy  observation  with  what  solniety  and  justM 

to  have  excited  much  disgiist  and  discHnileiit ;  the  Commons  proceeded  herein :  tlie^-  orilen 

and  it  is  not  improbable  that  the  prevalence  of  tiieir  seneant  forthwith  to  repair  to  t^e  Conipt 

those  feelings  thus  excited  greatly  contributed  in  Bread-street,  wherein  Mr.  Ferrers  was  con 

to  enable  king  Charlea  the  8Mond — odious,  and  mitled,  with  his  maoei  to  demand  Ins  deliver] 


STATK  TRIALS,  32  Charles  II.  16S0.— PWui/fjre  of  Parliament.        [lo 

nh'.o'i  tilt*  scriear:t  iliil  lo  the  officers  of  the  i  pear  before  tlicin,  to  an-^wer  for  themselves 
('•>:.. ;•:•  r.  uho  not%%iihstan(liii^  refused  to  do  I  itefbrc  tlie  House  passed  any  eensure  ii|mu 
II,  .:r.  1  U'ai  and  hurl  some  of  the  serjeaiii's  ihenf.  3.  That  in  none  of  those  ceiismvs  tlicv 
i«r;iir>..  aad  hiuke  liis  mace;  and  dunn^*  the    enj«>imd  lh'?  '.!« !iiH)i!ei\t  to  pay  their   fees  to 


b?sM{.  ihi-  sheriifs  of  Lonilon  eatiic  in,  Mho 
r*M:itrii:uK-e<l  the  otricers  of  the  (Jfiinpter,  and 
iri"»if**l  to  deliver  3Ir.  Ferrers,  and  <;ave  tlie 
KTJj^nt  proud  lanf;ua<re,  and  c^iitemp^uoiiNly 
irjrtltti  his  mesNa^^e :  1  lerciijion  the  Commons 
nKLinandt-l  the  <^rieani  to  ve<;i!ive  the  sheritrs 
U  Uinduii  to  deliviT  31  r.  Fe.rers  hy  shewing 
iImu  hn  ma4*e,  which  >vn.s  his  wnrrant  fiir  so 
dfitsg.  W  ber«*upoti  the  sheriiis  de1ivei*ed  him 
ictiTiitD'^ly  ;  but  then  the  :»oi;i;-ant  havini^f  fur- 
iW  (vuiniaoil  from  the  (.'onniions,  chars|^?ri 
(fieshmlii  t(i  ap|iear  iH;rs<»naU3'  on  the  r.iorrovv 
ir  turfit  of  the  cioek,  hei«i*e  the  Speaker,  in 
tlie  BeiiMrr  House,  to  briiiij:  thither  the  Clerks 
«l  tiK  Omifter,  and  such  other  of  their  otiieers 


tlii'ir  :i(T|":  lit,  f<»r  the  si'rjeant  is  tin*  Ling's; 
oiii.rr;  i-u-:  i»;.  tiu*  ^tith  \\  eM.  l,nootiieer  of 
th<  ki{»«f\  «^;.i'li  tuke  air,  fte  or  nnanl  for 
diiinij  liis  ( 'l.'i' .",  hut  what  l:e  n  eeives  from  the 
kinjf,  urM.n  p**r'li>  of  ren',ierii:i;'  douMe  to  the 
plai.'iti.I,  ai'.iil!.'  ;':.iih«'r  puniNlud  at  t!u'  will  of 
thckip.^'".  /i.il  ^'.r  Edv.ard  Coke  in  his  first 
fnst.  III).  3.  set.  V'M,  til.  Kxtoitioiu-rs,  says, 
this  wasUi;*a!:1ii'iU  eor.nnon  law,  and  llie  yn*' 
nnllios  rdiK.j'.  hy  thj  statutes  ;  and  that,  thoucrh 
some  Minutes  siiur*'  hti>e  alioncnl  the  ki'.iir's 
oflieers  in  soniii  eases  to  lake  ft'es  for  exeeutii-ji^ 
their  <»H'*e ..':;,  y-t  none  otiivr  can  be  taken  but 
what  sueh  statutes  allow  ;  and  that  all  olfieers 
of  tli<'  kiiijf,  who  take  li'es  olhr-rwise,  arey^uilty 


t»  ^ere  |iarti€»  in  the  fray,  and  to  take  into  t>f  j)erjiiry.  I  would  know  by  what  law  the 
ri>ii«iy  one  White,  who  had  wiltinjrjy  prf>- I  ('ommons^  sevjennt  take>;his  fet.'S,  uiid  how  the 
OTk^i  Uw  said  aiTC'St  in  contempt  of  the  privi-    Couunons  <'an  abi>olve  huu  from  pcijury  lur 


k^oi  parliament. 

'*  Next  <la\'  the  two  sheriffs,  with  one  of  the 
drfis  and  \Vbite,  apiiearefl  in  the  Commons 
Uiiue ;  where  the  Si>€alie»'  cliaq;inc«;  them 
vitii  tbi:ir  CfHitempt  and  mi«lcnneauor,  they 
»«7e  cuiiipeUcd  to  make  hnmediate  answer, 
vtbiNit  beinsT  ailmitted  to  council  [qu.  to  have 
oiJAsel]  ;  and  in  conclusion  the  sheriflv  and 
Hiuie  werecoiuraittedto  the  Tower,  and  the 
Ml  (nhich  was  the  ocoaKion  of  the  fray)  to  a 
ffact  i-aUed  Little  £ase,  and  the  officer  which 
^ the  arrestf  called  Taylor,  with  four  other 
Mficcn,  to  Newgate,  wherc^  they  remained 
limn  the  23lli  to  the  3 1st  31aix*h,  and  then  were 
Lriiteretl  at  the  bumble  suit  of  the  mayor  and 
t!<sr  ocijer  friends. 

-  Tbe  nevt  breach  of  privile«fe  reported  by 

Km.  k  eight  ycuirs  after,  >iz.  tlie  4th  af  Ed- 

nnl6.  by  oneWithrin^on,  who  made  an  as- 

ftuit  upon  tb«;  pc-rson  of  t>ne  Bnuidlin^,  liur- 

psiof  Nc%vc:i.st'c  ;  hut  the  parliament  dra\\in^ 

tiFvsjkii  aa  eniK  the  Commons  sent  W  ithrinti^. 

t'-bMth<^  pri^y  council,  but  the  comicil  would 

L'4  zne^dU'  in  it,  and  sent  the  bill  of  Mr.  Brand- 

luif '«  ci'inphiint  back  a|^in  to  the  Commons 

Mt^.rdin£;  to  the  antieni  custom  of  tliC  House ; 

vliereupon  the  bjl  was  sent  to  the  Lords  from 

ikt  Commrcns,  %%  ben  Withrinffton  eonfess^l  he 

k^faa  the  fray  upon  Dr.  Brandlint^,  upon  w  liieh 

Imt  Has  comrnitted  to  tlie  Tower.     This  was  in 

ibe  >c£r  1660. 

^**Mr.  Petit  finds  net  another  breach  of  privi- 
ligetiU  the  14th  i»f  Elizabeth  which  was  done 
hf  oat  Arthur  Hall,  for  siyidrv  lewd  6|)eechcs 
■a  well  in  the  Commons  House,  as  abroad ; 
was  warned  by  the  serfeant  to  appear  be- 
tbe  bar  of  the  Conmious  to  answer  tor  the 
,  Slid  uf^n  his  knees,  u|)on  the  humble 
or  lus  Mly,  he  was  remitted  w  ith  a 

Ccsbortatiofi  given  him  by  the  Hpeaker. 
I   obserre  them  three  particuUu^:    1. 
of  these  breaches  ofprivileii^  of 
Ib  finmer  times.    2.  Tbejustii*e  of 
in  their  proceedintjfs  of  breach  of 
>,  lo  cite  the  puraou  or  pcrs««Ds  to  ap- 


takin<jf  such  tlH.s. 

**  Whereas  in  tliis  pnrliat;u»nt  rarely  a  iliiy 
|)as.sed  wherein  men  U|)on  bare  sii^i^estioos, 
and  absent,  were  not  jn:'i^*d,  and  e\ccii»i'i:i 
ordered  for  hiufli  and  niitorious  breach^  of  th:* 
Conmtons'  privile|ift!S,  vet.  most  of  these  not 
foreknown,  and  ofdercnl  to  Ik»  taken  into  cu.-^- 
tody,  tlioujrli  in  Northundierland  and  York- 
shire :  and  rarely  1  think  any  of  them  were 
dis4^har(^efl  without  payings  their  fees ;  nay, 
they  oiitnni  nil  that  was  ever  iluMii^ht  of  before  : 
for  on  the  14th  of  December,  havinjj^  \oted  one 
3Ir.  Herbert  Ilerrino-  to  be  tak^n  into  custody, 
and  Herrin*;:^  altscomliniv-,  the   Housf>  resohed, 

*  That  if  he  did  not  render  himself  by  a  ccr- 

*  tain    day  they  would   proci^'d  n;^alnst  lum 

*  bv  bill    in    parliament  for  endeavouring;  by 

*  his  absconding'  to  avoid  tlu;  justice  of  the 

*  House.' 

**  It  was  «traTic:e  methong^ht  that  the  r<mi- 
mons  shoubl  be  so  zealous  aii-ainst  any  aroi- 
Irary  |K>wer  in  the  kin*^,  and  l.iko  such  a  lati- 
tude to  theiUbelves,  which  puts  n:e  in  mind  of  a 
story  I  have  heard  of  an  old  usurer,  who  had  a 
nepncw  who  had  i^ot  a  lici-nce  to  preach,  ami 
the  uncle  havinsf  ui-vit  ilone  an^  thinjj  for  his 
nephew,  lieresol\Hl  i^  W.  re\i-n;je«l  npon  his 
uncle  hi  a  si-rnion  which  he  Wiudd  priMch  be- 
fiii-e  his  uncic  in  the  parish  wheif^  he  li^t^l  : 
he  made  a  most  invective  sermon  a<^ait;>t 
usur}'  and  usurers  ;  but  alter  ihi*  scrmtm  was 
4lone,  the  uncle  thanks  his  nephe*.)  (or  his  jvond 
sermon,  and  •ra\e  hiiu  two  '.iOx.  picc«'s  :  the 
nephew  was  confouciU'd  at  tbi.^:,  and  lH'«;i^etl  his 
itncle\  [Kirdon  for  v«Iiaih>'lnd  done,  for  he 
thoii;;ht  he  had  !;iwi!  him  ;;fical  oifence :  *  \o,' 
said  the  uncli ,  '  Nrplii-w,  tro  <»n  and   preach 

*  other  folds  oat  of  the  conceit  of  usury,  and  I 
^  shall   have  the  bi.1l(Y  o|i|Mirtunity  <;t'puttins^ 

*  out  my  money.'  "  'iti'oke's  Detection,  p.  'S.'io. 

"  Afterwaiils  he"  [KenntU")  "  comes  to  the 
pfrcat  work  of  morlltyii'^i"  thr^e  AMiorrers,  and 
there  he  is  full  as  copi«»us  and  honest ;  ft»r  he 
tells  only  of  nine  or  ten,  in  a  naked  li.st  of  gen- 


1 1  ]  STATE TRTALS,  52  Charlks  II.  l6^0.'^Proee§dingi  agmnti  jR.  Thompion 


tlCTien,  sent  for  by  the  scrjeant  at  arms,  and 
committed  by  the  llonae  of  Ckimmons,  without 
any  distinction  of  caRen  or  chtmmstanccM,  but 
only  for  detesting  and  abkorrinc  uctiiioiiing  for 
the  sitting  of  the  parliament.  That  is  his  tunc 
upon  all  occasions.  And  here  he  is  forced  to 
cnrad  in  by  the  by,  that  it  was  a  breach  of  the 
privilec^  of  parliament;  which  vote  did  indeed 
come  forth  at  last,  otherwise  this  committinsf 
folks  had  gone  with  less  colour.  But,  withal, 
that  the  proceeding  raised  a  great  cHunour  in 
the  country ;  for  it  had  not  been  usual  to  send 
for  gfentlemen  in  custody  for  what  thry  did 
upon  ^prand  juries,  and  in  way  of  duty,  as  well 
in  giv'iug  testimony  of  their  loyalty  to  the  king, 
as  in  resisting  a  tumuhuous  trade  of  lioud 
gathering  in  the  country,  to  the  yery  great  dis- 
turbance of  the  neighbourhood  and  tlie  public 
peace,  only  because  they  hapnened  to  be  mis- 
midcrstood  in  the  House  or  Commons.  It 
certainly  was  prejudicial  to  the  authority  of  &e 
House  of  Commons,  and  added  to  the  dispo- 
sition in  the  kingtlom  of  relying  upon  the  king's 
good  government ;  and  many  said.  Shall 
uiey  take  away  the  liberties  of  the  king's  ])eo- 
ple^  whp  are  entrusted  to  defend  tliem  against 
all  arbitrary  powers  whatsoever  ?  And  it  gave 
occasion  to  toe  king  to  justify  the  dissolving, 
saying,  as  in  his  declaration, — *  That  they  re- 

*  tumcfl  arbitrary  orders  for  taking  our  subjects 

*  into  custody  for  matters  that  hafl  no  relation 
'  to  privileges  of  jmrliamcnt. — Strange  illegal 

*  rotes ! — declaring  divers  persons  to  be  ene- 

*  mics  to  the  king  and  kingdom,  without  any 

*  order  or  process  of  law,  any  hearing  of  thcv 

*  offence,  or  any  proof  so   much  as   offered 

*  against  them.' 

«*  Tlie  effect  of  tUe«?c  harsh  proceedings  ap- 
peared in  the  case  of  one  iMr.StavcKor  Stowel,* 
a  gentleman  of  a  good  family  in  Devonshire. 
He  was  foreman  of  a  grand  jury  at  Exeter,  and 

•  Commons  Journal,  **  Sabbati,  4to  die  Oe- 
Cembris,  1680,  p.  m.  The  House  being  in- 
formed that  3Ir.  William  StawcU,  in  custody 
of  the  Seijeant  at  Arms  attending  this  House 
is  sick,  and  not  able  to  appear  before  this  House, 
Ordered,  That  Mr.  Stawell  have  a  month's  time 
given  him  for  such  his  appearance."  It  sccnis 
probable  that  this  entry  relates  to  the  person 
mentioned  h^  North.  Mr.  Hnme,  indeed,  8 
Hist.  131.  Ed.  of  ]80r.  tells  us,  that  '<  the 
vigour  and  courage  of  one  Stowel,  of  Exeter, 
an  AbhoiTer,  put  an  end  to  the  practice"  [of  ar- 
bitarj'  and  capricious  connnitntents].  *•  He  re- 
fused to  obey  the  Serjeant  at  anns,  stood  upon 
his  defence,  and  said,  that  he  knew  of  no  law 
bv  which  they  pretended  tu  c'i»inmit  him.  The 
llouse  finding  it  eouaily  dangerous  to  proceed 
or  to  recede,  got  off  by  an  evasion  ;  thev  insert- 
ed in  their  votes  that  Stowel  was  inJisposefl, 
and  that  a  month  time  was  allowed  iiim  for 
the  recovery  of  liis  healtli."  He  quotes  no 
authority ;  so  that  he  *'  stood  upon  his  defence," 
mnd  **  got  dear  off  by  an  evasion,"  (no  very 
dignified  historical  phraseology'),  may  perhaps 
ht  Mcre  inrmtiTe  decoration. 


presented  to  the  judge  of  assize  the  gran< 

Address  to  his  majesty  in  the  tenor  of  an 

rence.     Upon  naming  him  in  the   H( 

Commons,  for  the  leader  of  this  Abhorre 

was  ordered  to  be  taken  into  custody 

Serjeant  at  arms.     And  the  Serjeant  sen 

his  deputy  to  bring  the  gentleman  up  ; 

would  not  submit  to    the  arrest,  the 

might  take  his  course.     For  which  he  a] 

that  he  knew  no  law  for  the  taking  av 

liberty  on  account  of  wliat  he  did  as  a 

jni-y  man,  in  a  court  of  justice,  swoni, 

some  such  effect;  whereupon  the  ofli< 

turned  without  his  prey.    Hiis  was  a  < 

cold  water,  and  took  down  tlie  ferment 

whole  business.     And  the  matter  was  I 

op,  some  saving  that  he  was  indisposed, 

that  he  could  not  be  found ;  an<l  so  ii 

was  fartlier  done  agaiast  him.     And  ni 

men  of  any  sort  were  sent  for  into  c 

upon  this  account ;  for  the  wisest  of  tl 

tion  b^nr^an  to  perceive   there  had  bet 

many  sent  for  already.     I  remember  w( 

the  name  of  this  Mr.*  Stowell  was  famoi 

cried  uu  in  and  about  London,  ami  a 

England,  and  celebrated  in  healths  of  < 

as  of  a  geneml  afler  victory,  or  rather  a  i 

assertor  of  the  people's  liberty.     1  never 

the  like  in  the  case  of  a  private  person, 

that  of  Dr.  Sacheverel ;  the  latter  run  L 

but  the  difference  was  only  in  *  majus  et  n 

It  was  impossible  a  faction  (without 

should  rage  and  tyrannise,  as  the  par 

about  the  beginning  of  this  parliamen' 

not  lose  the  hold  they  had  of  the  people, 

tliey  had  led  into  a  tolerable  opinion  of 

There  was  scarce  a  day  past,  but  tlie^ 

gratified  with  hearing  some  |>enon  wa 

lor   in  custody  fur  abhorring.      Sir    C 

Treby  said,  they  (meaning  the  House  of 

noons)  kept  an  hawk,  (which  was  tliei 

jeant  at  anns)  and  they  must  every  du; 

vide  flesh  for  their  hawk.     1  can  better  * 

this  fen*  truth,  because  it  was  spoke  to  ir 

The  Serjeant's  name  was  Topham,  an 

much  work  he  had  upon  his  hands,  r 

time,  *  ad  terrorem  populi  Regis,'  hail 

it  proverhial,  on  all  discourse  of  perert 

commitments,    to    say  '  take  him  Topi 

which,  for  ought  I  know    to  the  con 

may,  from  that  authentic  original,  coi 

a  proverb  at  this  day.     Whatever  the 

mitinetits  were,  the  dread  was  almost 

versal;    for  after    the   vote,    that    tnul 

petitioning  should    be  punislje<l  as   a  11 

of  Privilege,  who  could  say  his  liliertji 

his  own?    For,   bein"*  named   in  the   1 

for  an  Abhorrer,  <take  him  Topham.' 

the  consequence  of  this  proceedin*/,  as  1 

hinted  it,  may  be  a  lesson  ti»  all  [>owci 

whatsoever  foot  they  are  erected,  that 

take  care  to  perform  their  dnty  acronii 

the  intent  of  their  institntion,  thereby  m 

themselves  useful,  and  not  a  terror  to  the 

pie  under  them ;  for  if,  instead  of  that,  < 

privite  mards,  Aey  grow  uitemperate, 

gnlar,  ana  injurioas,  they  wiO  lose  groum 


i  3)        STATE  TRIALS,  32  Charles  II.  iGSO.-^Privilvge  ef  Parliament.         [U 


u  Im^h  be  humbled,  if  not  wholly  lost." 
North ';»  Examen,  p.  560. 

S>,  too,  Burnet,  1  Own  Times,  484,  fol.  ed. 
of  1724  : 

"  Hie  House  did  likewise  send  their  serjeant 
la  Bio>  parts  of  Enghind,  to  briim^  up  ahlior- 
rm  u  ilelinquents :  ufion  whicli  the  right  that 
ihiy  had  to  imprison  any  besides  their  own 
maJbtvi  came  to  be  nuieh  questioned,  since 
tii^i  ct'uki  not  receive  an  information  upon 
oitL.  iMir  |>roceeil  against  sucfi'  as  refusctl  to 
Kf^ia  behire  th«Mii. "  In  many  places,  those  for 
vkMOiihe}'  sent  tiieir  serjeant  refusetl  to  come 
up  It  was  found  that  such  practice's  were 
ptRHirird  on  no  law,  and  wcTe  no  elder  than 
fata  Elizahetli's  time.  While  the  Hmise'  of 
ranaK'Ob  usi^i  that  power  gently  it  was  sub- 
miOMl  to  in  res|ie€<t  to  it ;  hut  now  it  grew  to 
he  10  much  extended,  tliat  many  resolved  not 
tuMibraitto  it."  [Query,  as  to  what  Burnet 
■i<>of  the  Ht«i»e"of  Commons  not  proceeding 
•CUKt  Mich  as  rei'used  to  appear  before  tliem, 
•it  tlk:  Proceedings  in  the  Case  of  Jiiv  and 
Ttfibau.  A.  D.  1689,  infra,"]  8ec,  too,  Kalph, 
ill»,J17. 

Mach  anention  has  been  lately  (1  write  in 
uv  BioDth  of  June  1810)  directed  to  the  topic 
«f  caaminneffii  hy  the  House  of  Commons, 
ia  coBiequeiicc  of  the  publication  of  a  Letter, 
h**n  ''  Sir  Francis  lUirdett  to  his  Constituents 
iiM>inictlie  power  of  the  House  of  Commons 
In  iai|>rMm  iLe  people  al'  Engkind."  And  in 
iMibon  M  the  copious  discussion  of  the  sub- 
jfcct  in  {larlianient,  it  has  been  ventilated  from 
tlirpcsft  with  m^K'b  erudition.  Mr.  WilliTuns 
^}vi  hns  piiltlished  a  learned  '*  ArGfumeiit  u|>on 
thk|aRidictiiHi<it*  the  House  of  Commons  to 
riiMmir  a%  caNen  of  Breach  f»f  Privih^ge,"  and 
ajwveriul  writer,  (Mr.Efans)  uruler  the  sigiia- 
tmt  ut  *  Piihliffda*  hiu  niiblished  *^  Six  liCtters 
6aia«  lilierty  of  tlie  Sunjecf  and  the  Prinleges 
i*f  ttir  HfMine  of  C'ooimons."  So  lik«*wise  have 
been  ^li<4ied,  **  TIm*  Spcf*ch  of  Mr.  Ponsoubv 
fin  tbt-  question  relative  to  tlie  Privileges  of  the 
Houpttr  •A'  ir<inMiionM  as  connected  with  the 
o4'  Sir  Fnuieis  Bunlett  and  (iaie 
;"  '^Sper'ch<tf  U'iliiant4(him,'t>sq.  Sec.;" 
**  4  i'^MiciHe  Aecmmt  of  the  Origin  of  i\w  two 
Hoi!i«n  of  PaHiameut,  with  an  impartial  State- 
■tfM  'f  the  FVtvileges  of  the  Iloiisf*  of  Com- 
umitMk.  aiid  of  the  lilierty  of  tlu-  Suhjei't,  by 
fcflward  Cln-i««tiuo,  cm).  Vc.*'  ;  **  The  Imw  and 
ot  Par!ianiiri«t  in  eases  of  Pri«  ilegi'S  and 
V*'.  hy  Fram-is  Ludlow  Ifiilt,  es4|.  ;'- 
**A  %*indi«*ation  of  llie  Privileges  of  the  Houso 
rf  CovMnfjnfs  >ec.  by  Henry  Miuluf^k,  jun. 
**  The  QneMtion  cimsidercd :  11ns*  the 
of  Commoii«i  a  riglit  of  counnittnl  to 
He.  by  K.  A.  Bunialiy,  eM). ;''  and  an 
mis  ^'^.Sh«*rt  Examination  into  tlic  power 
Hoi!ae  t4'  Commons  to  cnnnmit,  in  a  Let- 
Hr  FraiMfLH  Burdett,  bait.**  Tlie  House 
«  also  liaa,  by  Votes  of  1  ith  and  93d 
1810,  caused  to  be  ptiuted  the  following 
fits: 


These  Ri-jwrts  are  as  follows : 

REPOirLS  from  the  Skllct  CoMMrrxEE  ap- 
pointed to  consiiler  of  the  1^'ocecdinga 
had,  and  to  bf.>  hiul,  witli  reference  to 
the  several  P»|iei-s  signed  **  Fiuncis  Bur- 
df.1t;"  the  Contents  of  which  relate  to 
his  being  apprehended,  and  committed  to 
tlie  Tower  of  lymdon.  Together  with  an 
AiTENoix.  [As  amended  on  Recommit- 
ment.] 

FIRST  REPORT. 

It  appears  to  your  Committee,  afler  referring 
to  the  Onler  of  the  House  of  the  5tli  day  of 
April  last,  for  the  cfuumitment  of  sir  Francis 
BunleU  to  the  Tower ;  the  Warrants  of  the 
Speaker  t«r  that  purpfise  ;  the  Ix^tter  of  sir 
trancis  Burdett  to  the  Sjieaker,  dated  the  17th 
day  of  April  List ;  the  Report  and  Examination 
of  the  Serjeant  at  Arms,  touching  his  proceed- 
ings in  the  execution  of  such  warrants  ;  the 
notices  to  the  Speaker  referred  to  your  Com- 
mittCH* ;  tlie  demand  made  upon  the  Serjeant 
at  Arms  of  a  copy  of  tlie  warrant  under  which 
he  arrested  sir  Francis  Bunlett;  tlie  writ 
served  upon  the  SiTJcaut,  and  the  summons 
serve<l  u|Kin  the  SjM'ukcr,  and  the  notice  of  De- 
claration filed  against  the  Serjeant ;  which  said 
notices,  demand,  writ  luul  summons,  are  all  at 
tlio  suit  or  on  behalf  of  tlie  saiil  sir  Francis  Bur- 
dett, and  all  bear  the  name  of  the  same  solicitor, 
John  Ellis  ;  That  the  said  procccniiugs  liavo 
liecn  brought  against  the  S|ieaker,  and  the  Ser- 
jeant, on  accfmnt  of  what  was  done  hy  them 
respectively  in  ol>fdieni'e  to  the  Onler  of  tho 
House ;  and  for  the  purpose  of  bringing  into 
ouesti'fTi,  liefoix'  a  court  of  hw,  the  legality  of 
the  proceetlings  of  the  House  in  ordering' tlio 
conimitiiu-ut  of  >ir  Francis  Burdett,  and  of  the 
conduct  «»f  tlic  Speaker,  and  the  Seijeant,  in 
(»lietlience  til  that  Order. 

1.  ^  our  (.'ommittee,  not  in  consequence  of 
anvflouht  upon  the  question  so  intcnikHl  to  be 
raised,  but  inr  the  purfMise  of  collecting  into 
one  vii'W  such  Preccilents  of  the  jiroceeilings 
ol'the  House  upon  cases  of  Breach  of  Privilege 
as  might  afluril  light  upon  this  inqxirtant  sub- 
j»i  t,  ha\  (•  in  the  lirst  place  examincfl  the  Jour- 
nals, with  relation  to  the  practice  of  the  House 
in  commitnient  4»f  persiins,  whether  meniliei'S 
or  others,  lor  Bivaclii:s  of  Privilegi*,  hy  <dfeii- 
si\t'  v.urds  ur  writint;^  dentg;it<>ry  io  the  honour 
j  and  churactiT  of  the  House,  or  of  any  of  its 
iiiiiubt.'is;  und  tlii'V  have  found  nuuierous  in- 
stances, in  the  history  oi'  Parliament,  so  far  as 
the  Journals  extend,  of  the  frt*«|uciit,  unifoim, 
and  uuinterriqitcil  practice  of  the  House  of 
Coninioiis  to  commit  to  diflerent  custiHlies, 
pers<iiis  whom  tliev  have  iidjudged  guilty  of  a 
Breach  of  their  Prn  iK-gcs  li\  s<i  oHending. 

The  slafciiiem  oi'  tli<s«*  *PriT.<Hleiits,  which 
CKtid)lish  llif  I^iw  of  Parliament  upon  this  point 
by  the  usai^c  oi  Parliament:  the  utilitv  of  such 
law,  and  the  necessity  uliich  cvists  for  its  con* 
tiimance,  iu  order  to  maintain  the  ihgnity  and 


I 

1 


15]  STATE  TRIALS,  32  Chahles  II.  l660.^Prceef  dings  againit  /?.  ThompsoH—  [ 

indeitcndencc  of  the  Hoii>c  of  Commons  ;  its 
Aiialotry  to  i\w.  acknowliMltrcMl  powers  of  courts 
«>f  justice,  aiid  the  reros^ition  of  such  ri^it  in 
\iinoas  instances,  bv  Ic^l  aiitlioritieri,  by  judi- 
cial decisions,  anil  Ihy  tiic  other  branch  of  the 
Icpslaturc  ;  as  well  as  the  invariable  assertion 
and  maintenance  of  it  by  the  House  of  Com- 
mons, are  topics  which  nia^'  he  reserved  lor  a 
f\irthcr  Reiiort.  And  althoujo^li  there  are  some 
instances  in  which  the  House  has  thougfht 
proper  to  direct  prosecutions  for  such  ofTcnocs, 
yet  the  Connuittee  confidently  state  that  the 
more  fre<picnt  practice  of  tlie  House,  at  all 
times,  has  l)cen  to  vindicate  its  own  Privileges 
by  its  own  authority. 

2.  Tlie  subject  which  appears  to  your  Com- 
mittee to  pross  most  urpnently  for  an  immediate 
report,  is,  The  state  of  the  law  and  the  prac- 
tice of  the  House  in  cases  either  of  criminal 
prosecution  or  civil  action  a^nst  any  of  its 
members,  for  any  thing  spokni  or  done  in  the 
House  of  Commons ;  or  for  any  proceeding 
against  anv  of  its  officers  or  other  persons  act- 
ing under  its  authority. 

The  princii»a1  instances  to  be  found  under 
this  head  arose  out  of  those  proceedings,  which, 
in  the  time  of  Charles  the  Ist,  Charles  the  2nd, 
and  James  the  2nd,  were  instituted  by  the  of- 
ficers of  the  crown,  in  derogation  of  tlie  Rights 
and  Privileges  of  the  Commons  of  England. 
Tlioso  proceedincfs  wei-e  resisted,  and  resented 
by  the  House  of  Commons;  were  condemned 
by  the  whole  legislature,  as  utterly  and  di- 
rciilv  contrary  to  the  known  laws  and  statutes 
and  IVeedom  of  this  i^alm  ;  and  led  directly  to 
the  Declaration  of  the  Bill  of  Rights,  "  TImt 
the  freedom  of  speech,  and  debates  or  proceed- 
ings in  Parliament,  ought  not  to  be  impeach- 
ed or  questioned  in  any  court  or  place  out  of 
Parliament;"  and  your  Committee  have  no 
hesitation  in  stating,  that  this  article  in  the  Hill 

of  Rights  extends  as  clearly  to  Actions  or  Tii^ 

dictments  brougflit,  or  prosecutions  by  indivi- 
duals, as  to  Informations  or  other  prf)rep<linGfs 

directly    instituted    by  the  authority  of  the 

cro^vn. 
The  Law  of  Parliament  on  tliis  subject,  so 

far  as  relates  to  words  spoken  in  Parliament, 

was  legislatively  <lecl:ired  in  a  statute  to  be 

found  in  the  Parliament  R^dl  of  the  4th  of  II.  , 

8 :  By  that  act,  the  ricfhts  and  privilc^ros  of  I 

free  speech  in  Parliament  an»  e«itablished,  and  j 

a  special  action  is  ^iven  in  favour  of  the  pnrty  > 

Injured  by  any  action  brought  ajjainst  him  for  ' 

words  spoV'-'n'  in  ParliainfTit.      And.  from  tliis  , 

statute,  it  appears  that  Pailiainent  at  that  time,  j 

whi'h  tlu'  case  occurrrd  which  smncd  to  shew 

the  eYiurdit^ncv  of  lo^rislativf   provi>in!i  to  nriyo 

fuller foi-ci'  ;>n<t  protrr-tion  to  its  ]»ri\  ilrn^es,  made 

it  the  subject  of  su'.*h  provision. 

In  the  .5(h  of  Charles  1,  an  Infonn^tion  w:ls 

filed  aifaiuNt  sir  J.    lilliot,  IVn/el  Hollcfi,  esfj. 

and  Benjamin  Valentine,  for  thfir  speeches  and 

conduct  in  the  House  of  Commons ;  Judgment 

was  given  uirainst  them  in  the  King's- Bench, 

thev  wen»  sentenced    to    imprisonutent,   and 

t  fined :    hi  the  Parliament  which  met  in 

3 


1610,  the  House  of  Commons,  after  a  Repc 
made  of  the  state  of  the  cases  of  Mr.  Holl 
and  the  rest  of  the  imprisoned  meraibera,  in  tl 
3ni  of  C*harles,  came  to  several  Resolution 
by  which  they  resolved,  That  these  prucc^ini 
w  ere  against  the  law  and  privik»gp  of  Parlii 
luent ;  and  condemned  tlie  authors  and  acto 
in  them  as  persons  guilty  of  a  breach  of  ti 
privilege  of  Pariiament.  [ii.  Com.  Jour.  Jul 
6  and  8, 1641.  State  Trials,  vol.  3,  p.  310, 
this  Collection.]. 

In  tlie  reign  oif  Charles  2,  these  procce<lin( 
were  again  taken  into  consideration  ;  and  tl 
House  of  Commons  came  to  sevc^ral  Resoh 
tions.  On  the  12th  of  November,  1667,  the 
resolved.  That  the  act  of  Parliament  in  the  41 
year  of  the  reign  of  Henrj-  8,  above  refem 
to,  is  a  declaratory  law  of  the  ancient  and  ru 
cessary  riffhti  and  privik>ges  of  I^rliamen 
On  the  23rd  of  November,  1667,  they  resolve 
That  the  JiHlgment  above  referred  to  again 
sir  J.  Elliot,  D.  Holies,  and  B.  Vakiitine,  e 

3uires,  in  the  King's-Bench,  was  an  iUpg 
udgment ;  and  on  the  7th  of  l>eccmbcr,  166; 
they  desired  the  concurrence  of  the  I.iord 
Tlic  Lords  on  the  I2th  of  December  agiec 
with  llic  Commons  in  these  Votes. 

Your  Committee  next  refer  to  the  case  < 
sir  William  Winiams ;  the  detail  of  which  the 
proceed  to  unert  from  the  Report  of  a  fonin 

Coimnittee  of  this  House.    [27  Mar.  1771.  ii 
Com.  Rep.  p.  il.] 

«  The  Case  of  su-  William  Williams,  again! 

*  wlmm  after  the  dissolution  of  the  Parlianiei 
'  hekl  at  Oxford,  an  Information  was  hrougl 

*  by  the  Attorney  General,  in   the  King'i 

*  Bench,  in  Trin.  Term  36  Car.  2,  for  a  niii 
'  demeanor,  for  liaving  printed  the  Infomiatio 

*  against  Thomas  Dangerfield,  which  he  ho 

*  onlered  to  lie  printed  when  he  was  8|>eiik0 

*  by  Order  of  the  House.    Judgment  passe 

*  against  him  on  tliis  Information,  in  the  2ii 

*  >ear  of  king  James  the  2nd.     This  procee<l 

*  nig  the  Convention  Parliament  deemed  t 

*  great  a  mievance,  and  so  high  an  infringi 
»  nient  of  tlic  rights  of  Pariiament,  that  it  ai 

*  jwars  to  your  Committee  to  be  the  principn 
<  if  not  the  sole  object  of  the  first  ]mrt  of  tli 

*  eighth  head  of  the  means  use<l  by  king  Jani< 

*  t>  sub^  cj  I  the  laws  and  lil)ertif>s  of  this  king 

*  d.ini,  as  set  forth  in  the  DtH-lai-atinn  of  tl 

*  tv>o  lloiises  ;  which  will  ap|K^ar  i^idont  froi 

*  the  account  gi\en  in  the  Journal,  Htli  of  Fei 

*  108K,  of  the  rornsiiig  of  that  Declanition,  tl 

*  L-i^liiii  head  of  whi*h  was  at  first  concein 
'  i!i  th'.'s.'  woids  ;  viz.  "By  causing  It 
**  foniiaiions  to  |je  brought  aucl  pniwviitcd  I 
**  t.'jc  Court  of  Kinir's- Bench,  for  untters  ai 
»•  ri.u>:«s  founiza!.!;'  only  in  Parliament,  and  li 
**  diMTS  other  :irbifnny  ami  ille«r;il  rtmrsi-s," 

nth  Febniary  165J».  '*  To  this  Article  tl 
"  Lonls  (lisngif  4m1  ;  and  gave  tor  n  n^imMi  Hi 
"  caiLse  they  do  not  fuHv  a'.jiri'luuid  w  Imt 
**  meant  by  it,  nor  what  instancc-H  then*  ha^ 
"  l)ceii  of  It;  which  theretore  they  itcMre  ma 
><  Ik;  explained,  it  the  Hoube  Khali  think,  tit  ' 
'*  insist  funht;r  on  it." 


STATE  TRI AL9,  32  Charles  II.  1  £80 Privilege  of  Parliament.        [  1 8 


I  Febnary  1688.  "  The  House  disagrce 
the  Lords  ia  their  amendment  of  leaving 
Jie  r^hth  Article.  But  in  respect  of  the 
hf  giren  by  tlie  liords  in  explaining  that 
tr  ;  resolved.  That  the  words  do  stand 
his  manner;  By  prosecutions  in  the 
t  of  Kinsf^s-bench  for  matters  and 
a  cof^nizable  only  in  pai-Uament,  and  bv 
;  oihir  arbitrary  and  i1l^;al  courses.  ' 
hii'h  Anieiidmeut,  your  Committee  ob- 
s  that  the  House  adapted  the  Article 
rorredly  to  the  case  tliey  bad  in  view  ; 
e  luliMrniatiun  was  filed  hi  king  Charles 
KQnd\  lime  ;  but  the  prosecution  was 
d  Ml,  and  judgment  obtained,  in  the 
il  virur  of  king  James.' 
iltbe  meaning  of  tlie  House  sliould  be 
ofeoni  k^y  idem  to  the  I^rds,  the  House 
d,  <*Thai  sir  William  WUliams  be 
I  lo  the  managers  of  the  Conference ;" 
r  IVilUaiD  W  lUianis  tlie  same  day  rc- 
the  Conterence  with  the  Lonls  ;  and, 
thtv  lordships  had  adopted  the  Article 
:iror(l:4  as  amended  by  the  Commons." 
iim:spondin^  to  this  Article  of  Griev- 
ts  tlie  arisertion  of  the  Ri^ht  of  the  Sub- 
1  ihe  niuth  Article  of  the  Declaratory 
f  the  BUI  of  Kighta ;  viz.  *'  lliat  the 
nn  and  debates  or  proceedings  in  par- 
flt,  ou^ht  not  to  be  impeachfS  or  ques- 
J  in  any  court  or  place  out  of  parlia- 

which  may  be  added,  the  latter  part  of 
oh  Resolution  of  the  Exceptions  to  be 
in  the  Bill  of  Indemnity,  Journal,  vol.  x. 
J,  wherein,  after  reciting  the  surrender 
arters,  and  the  violating  the  rights  and 
IBM  of  elections,  ^cc.  it  proceeds  in  these 
b:  **  And  the  questioning  the  proceed- 

i>f  parliament,  out  of  parliament,  by 
hntioas,  Informations  or  othcnvisc,  are 
w  for  wliich  some  persons  nia}^  lie  justly 
sled  out  of  tlie  Bill  of  Indemnity." 
ne  tith  of  June  1689,  the  House  or- 
**  That  the  Records  of  tlie  Court  of 
f t-bench,  relathig  to  the  proceedings 
ist  William  Williams,  esq.  now  sir  Wil- 

Williams,  knight  and  baronet,  late 
ker  of  this  House,  be  brought  into  this 
V,  by  the  Custos  Brevium  of  the  said 
t,  ooThuraday  morning  next."  [x  Com. 

I.  irr.] 

the  13th  of  July,  <«  The  Record  was 
;  and  the  House  thereupon  resolved, 
1  the  Judgment  given  in  the  Court  oi' 
^s-bench,  in  E&nIit  term  2  Jac.  2(1, 
■I  Williflira  Williamsji  eso.  Speaker  of 
isose  cf  Commons  in  tne  {larlinnieiit 
tt  Westminster  25th  October  dC?  (^^ar. 
br  HMtter  done  by  Order  of  tin;  House  of 
ami  as  Speaker  thereof,  is  in  ilU'- 
it,  and  aguiiLst  the  frtvdiiiii  of 

I,  That  a  hill  be  broui^ht  in  to  rc- 

Hud  Judgment."    [Ibid.  p.  '215.] 

was  twice  read,  but  weiit  no  f  ur- 

•esVion  :'^  A  similar  Bill  was  hi 

•  Vllf. 


the  following  session  ordered  to  1)6  brought  in ; 
and  a  third  Bill  passed  the  Commons  in  1695, 
and  was  sent  up  to  the  House  of  Lords,  but 
did  not  proceed  there  to  a  second  reading. 

It  app«irs  further,  tliat  on  the  nh  June  1689, 
^*-  A  Pctiiion  of  John  Tophani,  esq.  was  read  ; 
*<  setting  forth.  That  he,  being  a  Serjeant  at 
*'  Arms,  and  attending  the  House  in  the  years 
"  1679  and  1600,  when  several  onlers  were 
**  maile,  anti  directed  to  the  jietitioner,  for  the 
*'  takin«^  into  his  custody  the  several  persons  of 
^'  sir  Charles  Ncal,  9cc.  &c.  and  others,  for 
'*  several  misdemeanors  by  them  committed  in 
"  breach  of  tlie  piivilqje  of  the  House  ;  and 
^'  aller  that  the  Commons  were  dissolved,  thtt 
"  said  persons  being  resolved  to  ruin  the  peti- 
'*  tioner,  did,  in  IlUary  term,  the  S3d  or  34tli 
"  of  king  Charles,  sue  the  petitioner  in  the 
'*  KingVbench  in  several  actions  of  trespass, 
*'  battery  and  fak«e  imprisonment,  for  taxing 
^*  and  detaining  them  \xa  aforesaid :  to  which 
**  actions  the  petitioner  pleaded  to  the  juris- 
**  diction  of  the  Court,  the  said  several  orders  ; 
'*  but  such  his  plea  \f  as  over-ruled  ;  the  then 
*' judges  ruling  the  petitioner  to  plead  in  cliief, 
^^  and  thereupon  he  pleaded  the  orders  in  bar  to 
**  the  actions  :  notnithstandiug  \«hich  pica  and 
**  orders,  the  tlien  judges  gave  judgment 
*<  against  him,  &c."     fx  Com.  Jouru.  p.  164.] 

"  U|ion  the  Report  from  the  Committee  oc 
"  Privileges  and  Elections,  to  whom  this  peti-' 
"  tion  of  J.  Topham  was  referred,  the  House 
*'  Resolved,  That  this  House  doth  agree  with 
<*  the  Committee,  Tliat  the  Judgment  given  by 
"  the  Court  of  King's -bench,  Easter  term 
**  34  Car.  2,  Re^s,  upon  the  plea  of  JohnTop- 
**  ham,  at  the  suit  of  John  Jay,  to  tlie  juris- 
**  diction  of  that  Court ;  and  also  tlie  judg* 
"  ments  given  against  the  said  Mr.  Topham,  al 
'*  tlie  suit  of  Samuel  Verdon,  &c.  are  illegal, 
**  and  a  violation  of  the  privilqr^  of  parliament, 
**  and  pernicious  to  the  rights  of  parliament.^ 
Whereupon  it  was  ordered,  **  That  sir  Francis 
"  Pemberton,  sir  Thomas  Jones,  and  sir  Fran- 
*'  cis  .Wythens,  do  attend  this  House  on 
"  Wednesday  morning  next."  [x.  Com.  Jour* 
p.  209. 

"  In  consequence  of  this  order,  sir  Francis 
*'  Pemberton  and  sir  Tliomas  Jones,  who  liad 
"  been  two  of  the  judges  of  the  Court  of 
**  King's-bench  at  the  time  \ihen  the  judgment 
"  was  passed,  were?  heard  in  their  dcleiu'e  ; 
**  and  afterwards  committeil  to  the  Scrieuut  at 
**  Anns,  for  their  breach  «;fthc  priviu;gi»s  of 
"  this  Ilousi?,  hy  «Tuinjyjn,l;^in(.'iit  to  over- rule 
"  the  pica  t-)  tliv  jiirisUii'tifm  t>f  the  Court  of 
"  King's  IxMich.*'     [\.  Coin.  Jour.  p.  227.] 

Your  Coiiiniitlco  ttunk  it  proper  to  state,^ 
Tliat  sir  Francis  Pemberton  i.nd  sir  Thomas 
Jones,  in  defending  thfuisehes  at  the  biir  of 
this  Mouse  for  their  conduct  in  over-rnlintr  tha 
p!(;a  to  thoir  jurisdiction  in  the  actions  of  Jay 
r.  Topham,  Vc.  dirfcndcd  the  Judgment  they 
had  givtM),  l)v  resting  upon  the  iiaturt*  of  the 
p1u<tdtiig,  and  ndl  b\  lienying  thir  juri^diftiun 
or  nnthority  of  tliis  M(»u«»i'  ;  ami  sir  Francis 
Poiiibcrtan  expre^ly  admitted,  that   for  any 

C 


1!)]  STATE  TRIALS,  32  Charles  II.  \6%tS.^Proefeding9again$t  R.Tkampaim:  [! 

thing  transacted  in  this  House,  no  other  Court 
halt  any  jurisdiction  to  hear  and  determine  it. 
[Htate  Trials.] 

Your  Committee  in  the  next  place  think  it 
expedient  to  state  to  the  House,  that  there  are 
various  instances  in  which  persons  committed 
by  the  House  of  Commons  nave  been  brouj^ht 
up  by  Habeas  Corpus  before  the  jufU|;es  and 
courts  of  common  law  ;  and  in  these  cases, 
upon  its  appearing  by  the  return  to  the  Habeas 
Cforpns  that  they  were  committed  under  the 
Speaker's  warrant,  they  have  been  invariably 
remanded. 

3.^  Having  statetl  these  instances  of  the 
manner  in  which  the  Ads  and  Commitments  of 
this  House  have  been  brought  into  judgment  in 
«ther  courts,  and  the  consequences  of  such 
proceedings  ;  your  Committee  further  think  it 
pm|>er,  and  in  some  degree  connected  with  tliis 
subject, to  advert  to  the  course  which  was  adopted 
for  stnying  proceedings  in  suits  brought  against 
members  and  their  servants,  while  they  were 
protected  from  such  suits  during  the  sitting  of 
parliament. 

The  Roll  of  Parliament  8  Ed.  2,  affords  the 
earliest  trace  which  your  Committee  has  found 
upon  this  subject.  It  is  a  writ  from  the  king 
coufiniiatory  of  the  privilege  of  being  free  from 
■nits  in  time  of  pariiameut,  and  is  in  the  follow- 
ing words :  *  Rex  mandavit  Justiciaries  suis  ad 

*  assisas,  iurat :  Vc.  capiend.  assignat :  quod 
*-  supersedeant  Cajitioni  corandem  ubi  comites 

*  barones  et  alii  summonati  ad  Pari'  rp<;is  sunt 

*  partes  quamdiu  dictum  Parliamentum  dura- 
«  verit.'     [4  Co.  Inst.  24.] 

There  have  been  various  modes  of  procecil- 
ing  to^enforre  this  privilege.  Tn  lX^w(«*s 
Journal,  pa.  436,31  Eliz.  1.^88—1589,  Friday 
SI  St  of  February,  your  Conmiittre  find  the 
following  entry  :  *''lTpon  a  motion  made  by 
**  Mr.  Harris,  that  divers  members  of  this 
**  House  having  writs  of  Nisi  Prius  brought 
«<  against  them  to  be  tried  at  the  assizes  in 
**  sundry  places  of  this  realm  to  be  holden  and 
**  kept  in  the  circuits  of  this  present  vacation, 
"  and  that  writs  of  Supersedeas  might  be 
"  ai«-arded  in  those  cases  in  res{>ect  of  the  pri- 
'*  vilege  of  this  House  due  and  appertaining  to 
*'  the  members  of  the  same ;  it  is  agreed,  that 
**  those  of  this  House  which  shall  have  occa- 
**  sion  to  reouire  such  benefit  of  privilege  in 
**  that  behalf,  may  repair  unto  Mr.  Speaker, 
"  to  declare  unto  him  the  state  of  their  cases, 
<*  and  that  he,  uyon  his  discretion  (if  the  cases 
••  shall  so  i-equire)  may  direct  the  warrant  of 
**  this  House  to  the  Lord  Chancellor  of  Eng- 
^  land,  for  the  awarding  of  such  writs  of  Su- 
"  persedeas  accordingly." 

But  the  House  used' to  stay  also  proceedings 
-by  its  own  authority ;  sntiictimes  oy  standing 
tfi<>  Si'rjeunt  at  arms  to  deliver  the  person  ar- 
rested out  of  custody ;  and  sometimes  by  letter 
trom  tlie  S|Mniker  to  the  Ju<lges  before  whom 
the  cn»ise  was  to  be  tried.  Of  this  latter  mode 
of  proceeding,  your  Committee  find  many  in- 
■taiices  previous  to  tlie  "Srd  of  Charies  I.  Yonr 
Committee  find  a  decision  [Hodges  v.  Moor. 

a 


Trin.  S  Car.  I.]  against  the  authority  of  and 
letter,  in  the  court  of  King's  bench,  which 
reported  in  the  maig.  of  Dyer's  reports,  p.  t 
and  in  I^tch,  pp.  48  and  160.  And  snoit 
afW  the  refusal  by  the  Court  of  King's  ben 
to  notice  this  letter  from  the  Speaker,  the  paiH 
meut  was  dissolved.  There  are,  howevi 
many  other  instances  of  this  course  of  prooec 
iiig  after  the  Restoration ;  and  in  the  mstan 
oflord  Newburgli  (23  February  1 669)  the  Hon 
ordered  the  proceedings  to  outlawry  to  be  sta 
during  the  sessions,  and  the  record  of  the  a 
gents  to  be  vacated  and  taken  off  the  file,  [i 
Com.  Jour.  p.  1^6]. 

The  last  instance  which  your  Committee  11 
of  such  letters  having  beai  written,  occurs 
the  lord  Bulkeley's  case  in  1691,  in  which  t 
Speaker  is  directed  to  write  a  letter  to  the  prodi 
notary  that  he  do  not  make  out,  anu  to  t 
sheriff  of  the  county  of  Pembroke  that  he 
not  execute  any  writ,  whereby  the  lord  Bull 
ley's  possessions  may  be  disturbed,  until  B 
Speaker  shall  have  examined  and  reported  1 
matter  to  the  House,  and  this  House  li 
further  order  thereon,  [x.  Com.  Jour.  p.  53' 
By  the  19  and  13  W.  S.  c.  3.  this  Privilege  ¥ 
curtailed  ;  and  further  by  Stat.  2  and  3  Ann, 
18.-11  Geo.  2.  c.  24.— 10  Geo.  3.  c.  50. 

liord  chief  justice  l>e  Grey  says  in  Crosb 
case,  "  If  a  member  was  arrested  before  1 
<«  l?and  13  W.  3.  the  method  in  Westmina 
"  hall  was  to  dischaive  him  by  writ  of  privik 
**  under  the  great  setu,  which  was  in  thenati 
'*  of  a  Supersedeas  to  the  proceeding.  1 
'*  statute  of  William  has  now  altered  uiis,  a 
**  there  is  no  necessity  to  plead  tlie  privilege 
'*  a  member  of  parhament."  £3  nib.  H 
201.1 

AU  these  acts  merely  apply  to  procei 
ings  against  Members  in  respect  of  tl 
debts  and  actions  as  individuals,  and  i 
in  res|>ect  of  their  conduct  as  nufmbers  of  pi 
liament ;  and  tlierefore  they  do  not  in  any  h 
abridge  the  ancient  law  and  privilege  of  p 
liament  so  far  as  they  respect  the  freedom  i 
conduct  of  members  of  paniament  as  such, 
the  protection  which  the  House  may  give 
penious  actinir  under  its  authority. 

4 . — I^n  the  whde,  it  appears  to  your  Co 
mittee,  Tliat  the  bringing  tnese  actions  ngad 
the  Speaker,  and  the  Serjeant,  for  acts  dune 
obedience  to  the  orders  of  this  House,  ii 
breach  of  the  privileges  of  this  House. 

And  it  appears,  that  in  the  several  instan 
of  actions  commenced  in  breach  of  the  pri 
legos  of  tliis  Flouse,  the  House  luis  procee 
by  commitment,  not  only  against  the  l>arty, 
against  the  soUcitor  and  other  persons  conven 
in  briiigiug  such  actions ;  but  your  Commit 
I  think  it  right  to  observe,  that  tne  commitrn 
I  of  Kuch  (larty,  solicitor,  or  other  persons,  wo 
I  not  necessarily  stop  the  proceedings  in  a 
action. 

Tliat  as  the  particular  ground  of  action  d 
not  necessarily  appear  upon  the  writ  or  u] 
the  deolaration,  the  court  orfbre  which  sudi 
tion  is  brought  cannot  stay  the  suit  or  | 


STATE  TRIALS,  32  Charles  II.  Iffsa— PWvtfrg'^  of  Pitrliamtnt.       [CS 


againit  the  pb^ntifT,  till  it  is  iuforiutrd 
ow  of  legal  proo6«diiiff  that  such  ac- 
ogfat  for  a  thing  done  by  order  of  the 

liaefime  appears  to  your  Committee, 
thoi^i^  the  House  should  think  fit  to 
a  sohcitor  or  other  person  nuncemed 
Bcinff  these  actions;  yet  it  uill  still 
at  t£al  the  House  shoidd  give  leave 
aker,  and  the  Seijeant,  to  appMur  to 
tkiiiis  and  to  plead  to  the  same ;  ti)r 
i  of  bnnging  under  the  knowledj^e  of 
the  authority  under  which  they 
if  the  House  should  agree  with  Uiat 
or  CcHnmittee  submits  to  the  House, 
would  not  be  proper  tlrnt  directions 
pven  by  this  Honse,  fur  defending 
r,  and  tne  Serjeant,  against  the  said 


SECOND  REPORT. 


resuming  the  considera- 
primcipal  niaitera  reserred  in  tlieir 
lort,  do  not  thiidi  it  necessary  to 
le  vaiious  Pkrecedents  which  are  to 
'  the  exercise  of  the  power  oi'  Com- 
»y  the  House  of  Comuiohs  for 
;  Privilege  and  Contempt  in  gene- 
'mg  that  to  be  a  power  too  clear  to- 
i  qurstioo,  and  proved,  if  proof  were 
>y  Ibe  same  Preci-dcnts,  which  they 
ted  with  a  view  to  the  point  to 
y  have  more  immediately  directed 
doo,  and  which  Precedents  are  sub- 
icir  R^oit.  (Appendix  A.) 
ies  which  your  Committee  nave  se- 
KMt  directly  conneoled  with  the  sub- 
si  to  them,  are  those  for  Connnit- 
Libel,  an  offence  which  tends  to 
«lar  misapprehension  and  disaffec- 
tters  the  m«edom  of  tlie  debates 
lugs  in  parliament,  and  requires  the 
i|it  interposition  and  restraint.  The 
nmcdiate  uunisliment  and  example  is 
I  prevent  tne  ev'ds  necessarily  arising 
imnoe,  which  evil  it  is  obvious  would 
efls  effectually  guarded  against  by 
lilatoty  proceeding's  of  the  ordinary 
aw  ;  nevertheless  upon  some  occa- 

1  loose  of  Commons  have  pro- 
vinst  persons  committing  such  of- 
'  directing  prosecutioiis,  ur  by  ad- 
is  Buyesty  to  direct  them,  as  aiJjRars 
secdents  collected  in  Apitendix  (U.) 
le  series  <d  precedents  which  your 
e  And  on  your  Journals,  it  will  munt 
paar  that  the  Hnuse  of  Cfimuions 
id  Lfteh  as  contempts  ;  that  they 
cHllj  ponished  tlie  authors  and  pub 

Aem  by  coininitmcut,  wlietiier 
in  and  publishers  were  or  were  ni^t 
if  Ike  House  ;  and  tliat  inis  jiower 
■■ciKd  at  all  times,  sa  far  liack  as 
fe  aflbrd  an  op|H>rtunuy  of  tracing 
1^  Committee  cannot  Ibi  bear  ob- 
it f^  VmoedniB^  subjoined  to  their 


Report  establish  this  Law  of  Parliament,  upon 
the  ground  and  evidence  of  an  immemorisl 
usaffe,  as  strong  and  satisfactory  as  would  be 
held  sufficient  in  a  court  of  law,  tor  the  estab- 
lishment of  any  legal  right.    (Appendix  A.) 

Your  Committee  also  bejg  leave  to  observa, 
that  the  general  power  ot  Commitment  was 
solemn^  asserted  by  the  House  of  Common^ 
in  1676,  and  in  their  Resolutions  of  1701 ;  and 
was  also  claimed  by  the  House  of  Commona, 
and  admitted  by  the  House  of  Lords  in  the 
most  exdUcit  lenns,  in  the  conference  between 
the  two  Houses,  in  the  Case  of  Ashby  and 
White,  in  1704  ;  althougli  other  points  aiising 
in  that  case  were  strongly  controverted  between 
the  two  Houses.    (Appemlix  C.) 

Your  Committee  further  state,  that  it  hat 
been  recognized  by  legal  authority,  and  by  the 
most  solemn  decisions  of  the  courts  of  law  on 
various  occasions,  whenever  any  question  u|K»i 
it  has  been  brought  before  them  : 

By  eleven  of  Sie  Judges— in  the  Case  of  the 
Aylesbury  men.  2  Lord  Raym.  p.  1105. 
3  Wils.  p.  205. 

By  the  Court  of  King's-Bench— in  Mur- 
ray's Case.     1  Wils.  p.  299.     1751. 

By  the  Court  of  Common  Pleas— in  the 
Case  of  Brass  Crosby.    3  Wils.  p.  203.  1771. 

By  the  Court  of  Exchequer— m  tlie  Case  of 
Oliver.     1771. 

And  that  this  power  of  romniitment  by 
either  House  of  Paniament,  was  further  rec<^- . 
iiized  by  the  court  of  King's  Bench  in  the 
Case  of 'Benjamin  Flower,  8  Term  Ucnorts,  p. 
323,  who  had  been  committed  by  tlic  11  ou^  of 
Lords.  And  your  committee  have  not  found 
the  authority  of  a  single  decision  to  the  con- 
trary in  any  court  whate%'er.    (Appendix  D.) 

I  our  Connnittee  also  beg  leave  to  state,  that 
die  Judges  of  the  Common  Law  have  consider- 
ed Libels  upon  th<^  courts  or  the  proct^edings 
in  juf iicature  as  contempts  and  lia>e  frequenUy 

Eunislied  the  authors  and  publishers  of  them 
y  summary  commitment.  This  appears  from 
various  instances  stated  in  tlie  Appeiidix  (£.) 
which  liave  occurred  both  in  courts  of  law  and 
equity. 

Amongst  the  Judges  who  have  concurred  in 
those  decijiions,  u|M)n  the  power  of  |»arliaineut 
and  of  the  courts  of  law  and  e^iuity  to  commit 
for  such  contempts,  are  to  be  luand  lawyers 
the  most  distLugtiislied  for  their  zi'alous  re- 
gard for  thelibeny  of  tlie  subject,  and  the 
most  upright,  able  and  enlighteueil  mi-u  that 
ever  ailomed  the  seal  of  justice  ;  and  the 
doctrines  hiid  down  by  theui  all  coincide  uith 
the  ii|»iiftiou  solemnly  delivered  by  L«rd  Chief 
Juhtlce  De  (in>y  in  <  rusby's  ume,  that  the 
}iower  of  couiimtment  is  ^*  inlK-rfUt  in  the 
**  llousi' of  Commons  from  the  vi-r^  natcn^of 
^*  its  iustitutiun,  and  tlwt  tliey  i-uii  e  ititiiiit 
«(  geueially  for  ali  coiiteni|»ts."  3  W  iU.  |>.  i^Q. 
Uufler  all  these  circumstances,  Your  lom- 
mittoe  can  liave  no  hetdtatioii  in  subinittiutf  ilieir 
ilecidH  opinion,  that  the  |Hiwer  of  (xiiuiiiiuiient 
for  a  liljel  upon  the  House,  or  uimiu  its  membcrH, 
tor  or  ndative  to  any  thing  said  or  done  thecciut 


is]  STATE  TRIALS^  32  Charles  U.  leso.'^Proeeedimgt  ^gatnii  IL  Titowpw 


if  eflsential  to  the  Freedom  ofDebate,  to  the  In- 
dependence of  Parliament,  to  the  gecurity  of  the 
liberty  of  the  Subject,  and  to  .the  general  pre- 
servatuNi  of  the  $^te. 

.  This  power  iis  in  truth  part  of  the  fundamental 
Law  f»f  Parliament ;  the  Law  of  Parliament  is 
.the  Law  of  tiie  LAnd  ;  part  of  the  Lex  Terree, 
mentioned  in  Magna  dharta,  where  it  is  de- 
clared, that,  "  no  Freeman  shall  be  taken  or 
"  imprisoned  but  by  lawful  judgment  of  his 
*'  Peers,  or  by  the  Law  of  the  Land ;"  and  it 
is  as  much  within  the  meaning  of  these  words, 
"  the  Law  of  the  Land,"  as  the  uniyersally  ac- 
knowledge power  of  Commitment  for  con- 
tempt by  the  Courts  of  Justice  in  Westminster- 
hall,  wluch  courts  have  inherent  in  them  the 
summary  power  of  punishing  such  contempts 
by  6ommitmcnt  of  the  offenders,  without  tne 
intervention  of  a  Jury. 

Your  Committee  therefore  are  of  opinion. 
That  tliis  power  is  founded  on  the  clearest  prin- 
dples  of  expediency  and  right,  proved  by  im- 
memorial usage,  rectiffdized  and  sanctioned 
by  the  highest  legal  aumorities;  and  analogous 
to  the  power  exercised  without  dispute  by 
courts  or  Justice ;  that  it  fin^ew  up  with  our 
constitution ;  that  it  is  established  ana  confirmed 
'as  clearly  and  incontroVertibly  as  any  part  of 
the  Law  of  the  Land,  and  is  one  of  the  most 
hnportant  safeguards  of  the  Rights  and'  Liber- 
ties of  the  People. 

APPENDIX. 


Appendix  (A.) 

Paecedents  of  Coif  MiTMENTS  for  Wofds  and 
Publications,  Speeches,  &c.  reflecting  on 
the  Proceedings  of  the  House. 

I. — From  the  beginning  of  ihe  Joumalif  to  the 

CommonweaUh. 

1559. — ^TaowER. — For  contumelious  words 
against  the  Jlouse. — ^To  the  Serjeant — i  Jour. 
59. 

1580. — Hall,  a  Member. — For  publishing  a 
book  against  the  authority  of  the  House.— 

.  To  the  Tower,  also  fined  and  expelled^ — 
i  Jour.  193,  194,  125,  126,  1S2. 

1625. — Montague. — For  a  great  contempt 
against  the  House  for  publishing  a  book 
traducing  persons  for  petitioning  the  House. 
—To  the  Serjeant — i  Jour.  805,  806. 

1628.— Lewes. — For  words  spoken  against  the 
last  Parliament— To  the  Serjeant— i  Jour. 
^2. 

3(638. — Aleyn. — For  a  libel  on  last  Parlia- 
ment.— To  the  Serjeant — i  Jour.  925. 

1640. — Piers. — Archdeacon  of  Bath^  for  abus- 
ing tbe  last  Parliament.- To  the  Serjeant— 
ii  Jour.  63. 

1640. — Prestok. — Scandnlous  words  against 
this  H:>use.— To  the  Gatehouse— ii^or.  71. 

N.  B.— Tbe  King  did  not  leave  London  till  tbe 
10th  of  January  1641.  In  tlie  year  pre* 
ceding  iliere  are  very  many  cases  ofstranEers 
cofjimitted  for  conremptuoof  words  spci«en 
against  the  Parliamentt 


II. — Preeedentt  of  the  like  nature,  fr 
Restoration  to  the  Revolutioiu 

1660. — Lentuall,  a  Member. — For  w< 
the  House  againtt  tlie  preceding  Parliai 
To  the  Serjeant — viii  Jour.  84. 

— Drake. — For  a  pamphlet  reflectii 
the  Parliament ;  and  impeached. — ^' 
Serjeant^viii  Juur.  183.  185,  186. 

— Crakford.  DittOy    Ditto,  viii  Joui 

1661.— Gregory  and  Withers. — Foj 
phlets  reflecting  on  tbe  justice  of  the 
—To  the  Tower— viii  Jour.  368.- 
were  prisoners  in  Newgate,  and  wer 
mitted  to  the  Tower,  and  ordered  inl 
custody. 

1662— Greek.  Ditto,  To  the  Serjeant 
446. 

1670 — Woodward.— For  a  breach  of  P 
against  a  Member,  and  speaking  co 
tuous  words  against  this  House. — 
Serjeant — ix  Jour.  147. 

1675. — Howard. — For  a  scimdalous 
and  a  breach  of  the  Privilege  of  the 
— To  the  Tower— ix  Jour.  864. 

1680.— Sir  RoREAT  Cann,  a  Membei 
words  in  the  House,  reflecting  on  a  Bfl 
brouEbt  to  the  bar,  and  received  a 
mand  from  the  Speaker: — And  for 
spoken  out  of  the  Houie — commiib 
expelled. — To  the  Tower — ix  Jour.  6^ 

1680. — Yarington  and  Groob^. — For 
phlet  again&t  a  Member.— To  the  S 
— ix  Jour.  654,  656. 

1685. — CooKE,  a  Member.— For  wordt 
House. — ^To  the  Tower^ — ix  Jour.  760 

ni. — Precedents f  SfC.  from  the  Revolw 
the  end  of  King  Wdliam. 

1689. — Christopher  Smelt. — Spreac 
false  and  scandalous  report  of  sir  Pete 
a  Member.— To  the  Serjeant,  29th  J 
Jour.  844. 

1690.— W.  Briggs. — Contemptuous  wo 
behaviour,  and  scandalous  reflection 
the  House  and  upon  Sir  Jonathan  Jei 
a  Member  thereof.— To  tbe  Serjean 
Dec. — X  Jour  512. 

1691. — Richard  Baldwin. — Printer 
pamphlet  entitled,  '*  Mercurius  Reforo 
reflecting  on  the  proceedings  of  the  '. 
— To  the  Serjeant,  9th  and  2l8t  ] 
X  Jour.  548,  558. 

1693. — William  Soader. — Affirming  i 
porting  that  Sir  Francis  Massam,  a  M 
was  a  pensioner. — ^Tu  the  Serjean 
Mar.— xi  Jour.  123. 

1695. — Sir  George  Meggot.— Havin| 
dalixed  the  House,  in  declaring  that  i 
being  duly  chosen  be  had  friends  enc 
the  House  to  bring  him  into  the  He 
To  the  Serjeant,  27ih  Dec. — xi  Joui. 

1696. — JoHH  Marlrt. — A  Member,  foi 
in  the  House.— To  tlie  Tower,  9rl: 
xi  Jour.  581. 

1690.— Francis  DuKCOnkE. — Haring  • 
ed  before  two  wiiucs>c»  that  he  had 


f5]       STATE  TRIALS,  32  Chablss  IL  l6S0.— Privilege  of  P€rliamm^.        [2£ 


kned  Bonej  to  several  Members  of  the 
Boose^  and  afterwards  denied  it  before  a 
ONDiDittec  of  the  Hoose.— To  the  Serjeaoty 
5th  Jan.-*ai  Jour.  651. 

16M.— Joair  Rte. — Haying  caused  a  libel, 
fdkcting  OD  a  Member  of  the  House,  to  be 
snaied  and  delivered  at  tbe  door.— -To  the 
S^eulv  11th  Jan. — xi  Jour.  656. 

lfi|J--JoBV  Hath  E9.^For  being  the  occasion 
«f  a  letter  being  written,  r«ectiog  upon 
dK  booour  of  tbe  House,  and  of  a  Commit* 
iKj— To  the  Serjeant,  S4tk  Jan. — xiii  Jour. 
Ul. 

im.— TiaMAS  CoLEPEPB a.— Reflections  up- 
•  chf  last  House  of  Commons. — ^To  New- 
lili;  Feb.  7. — miii  Jour.  735.— And  Attorney 
Gcami  ordered   to  prosecute  him  for  his 


Vff^Pneedentg  of  the  like  nature,  from  1701 

to  1809. 

inip-Jtfaji  TuTcniN,  Joun  How,  Benjamin 
Btoifl.  -As  Author,  Printer,  and  Publisher 
tf  ■  minted  paper,  entitled,  *'  Tbe  Observa- 
iBi;*  reflecting  uoon  the  Proceedings  of  the 
Hmk.— To  tlie  Serjeant,  3d  Jan. — «iv  Jour. 

no. 

0M.— JamesMellot. — False  and  scandalous 
flflections  upon  two  Members.— To  the  Ser- 
jtsat,  (Kb  Mar.— xir  Jour.  565. 
-HEawAaD  Theobalds. — Scandalous    reflec- 
boas  apon  a   Member. — ^To  the  Serjeant, 
td  Mar. — aiT  Jour.  557. 
ms^— Samusl   Bc7Cklet. — As  Printer  of  a 
Mended  MemohiJ  printed  in  the  *'  Daily 
Coafant,"  reflecting  upon  the  Resolutions  (»f 
lbs  House.— To  the  Serjeant,  llth  Apr.— 
EviiJoar.  189. 
t715.— £.  BcaaiNGTON,  J.  Morphen.— As 
Pinivmd  Publisher  of  a  pamphlet,  entitled, 
*7bi  Evening  Post,**  reflecting  on  His  Ma- 
JM  and  the  two  Houses  of  Parliament. — 
To  the  Serjeant,  1st  July — xviii  Jour.  195. 
f7f9.r-RjcBAaD    Corbet. — Reflecting   upon 
the  Proceeding  and  tlie  authority  of  a  Com- 
■ince.— To  the  Serjeant,  31st  Mar. — xxi 
Jam*.  307. 
173S. — William   Noble. — Asserting   that  a 
Member  received  a  pension  for  his  voting  in 
Pkriiaincnt.— To  the  Serjeant,  19th  Feb.— 
tail  Joor.  945. 
174a — William  Coolet,  John  Meres,  John 
flccBES. — As  Author,  Printer,  and  Publisher 
•f  papers   reflecting    upon    His  Majesty's 
Gevemment,  and  the  Proceediugs  of  both 
of  Parliament.    Cooley  to  Newgate, 
Dec.  ;  Meres  and  Hashes,  To  the  Ser- 
Sd  Deoember^-xxiii  Jour.  545,  546, 

•  •if. 

lMfel  Johns.- -Author  of  a  printed 
containing  impudent  reflections  on 
I  P^ncet  dings  of  the  House. — ^To  the  Ser- 
M,  IStb  Mav— REV  Jour.  154. 
^Dsxvjs  SBADE.-^ticking  up  a  pnper 
iiflame  tbe  minds  of  the  people  against 
I  Hoase.-'To  tbe  Serjcmot,  9tb  of  Decem- 
p— nsix  Joor.  9r. 


1768— Joseph  Juornton. — Giving  directions 
for  sticking  up  the  above-mentioned  paper. 
— To  Newgate,  10th  Dec. 

1771.— Henry  Baldwin,  Thomas  Wright. 
—Printing  the  Debates,  and  misrepresent- 
ing the  Speeches  of  Members. — ^To  the  Ser- 
jeant, 14th  March— xxxiii  Jour.  258, 359. 

1774.— H.  S,  WooDFALL. — For  publishing  a 
Letter  highly  reflecting  on  the  character  of 
the  Speaker. — ^To  the  Serjeant,  14th  Febru- 
ary— xxxiv.  Jour.  456. 

1805.— Peter  Stuart. — For  printing  in  his 
Paper  libellous  reflections  on  the  character 
and  conduct  uf  the  House. — ^To  the  Serjeant, 
^Gth  April— Ix  Jour.  917. 

Appendix  (B.) 

Cases  since  1697,  of  Prosecutions  at  Law 
aeainst  Persons  for  Libels,  &c.  upon  the 
House  of  Commons  or  any  of  its  Members; 
and  whether  by  Order  ur  Address. 

1699. — Edward  Stephen. — Libel  on  the 
House,  and  on  an  individual  Member.— By 
Order,  S7th  February — xiii  Jour.  S30. 
1701. — ^I'uoMAS  CoLEPXPER. — A  Letter  to  the 
Freeholders  and  Freemen  of  England,  as« 
persingthe  House. — By  Order,  7th  February 
— xiii  Jour.  735. 
1702. — Mr.  Lloyd. — Aspersing  the  character 
of  a  Meml)er. — ^By  Older,  18tb  November 
— xiv  Jour.  37. 

1709. — Dyer. — Misrepresenting  the  Proceed- 
ings of  the  House.— By  Order,  26th  Febru- 
ary— xiv  Jour.  807,  208. 

1740.— John  Meres.— «*  The  Daily  Post."— 
Highly  and  injuriously  reflecting  upon  an 
act  of  Government,  and  the  Proceedings 
of  both  Houses  of  Parliament.— By  Ad^ 
dress,  3d  Dec. — xxiii  Jour.  546. 

1750 — Author,  Printer  and  Publisher. — Pub- 
lishing paper,  entitled,  "  Constitutional  Que* 
ries,''  grossly  reflecting  on  the  House. — By 
Address,  2Sd  Jan. — xxvi  Jour.  9. 

1751. — Authors,  Printers  and  Publishers. — ^The 
case  of  the  Honourable  Alexander  Murray. 
—Aspersing  the  Proceedings  of  the  House, 
and  tending  to  create  misapprehensions  of 
the  same  in  the  minds  of  the  people.— By 
Address,  20th  Nov. — xxvi  Jour.  304. 

1774. — Author,  Printers  and  Pnblishers.— Pub- 
lishing paper  called  the  **  South  Briton/' 
reflecting  on  the  House. — By  Order,  16tb 
February — xxxiv  Jour.  461. 

1788. — Authors,  Printers  and  Publisbers.— 
*'  The  Morning  Herald,  Tiie  Gazetteer,  and 
New  Daily  Advertiser.'' — Grossly  reflecting 
on  the  House  and  the  Members,  and  tending 
to  prejudice  the  defence  of  a  person  answer- 
ing at  the.Bar.— By  Address,  8th  February— 
xliii  Jour.  213. 

1788.-^ Authors,  Printers  and  Publishers.-*- 
**  Review  of  the  Principal  Charges  against 
Warren  Hastings,'' &c. — Highly  disrespect- 
ful to  His  Majesty,  and  the  House ;  and 
indecent  Observations  reflecting  on  the  mo- 
tives which  indoced  the  House  to  prelar  the 


/ 


^  vr ATETtlAl.^  i/l(MJkMi.iA  XL  ;i^ 


M^  ;t/1iWm.  :5»i  ••-.r ■•••'» — uii  .'-wr   ifli. 
JI'W  —  r'-'\tfr  %ii«t  *ir,:  r:Ar— *  Tut  "*  •-rit'' 

K>S  V,  «n-;-;*— .  a*  'rut  t^t>:;ciA  t'  ^ir  r*« 

1V4  teceatc^^^  j-.i/.  ::>,  ^:> 


Ci^ni  md  Ret '/cynryM  </  dK  PKn^c^.u  r?* 
pAftUAiCbiT.  af^  tfat  Power  of  C'.vxn- 


11  R>h.  t.     Rcc  Fwl.  vol  n.  S4t 

£a  jTCArt  foij^iment,  twrz  Im  Sjisn'rs  s* 

bitn  eapntelft  ry^ntt  tcxoprir^  ai*iri  pr»«ntz    m%Tb:«:  ^x-  rvccymd. — A  C'«*jk  Bdi  Lrr 

Sv/««%  «  «iitr.»  f«ri«m«iitz  « lu»i(«  a  .^,u-.  ••>-'3  -Com.  Juoni.  roi.  i.  p.  Sft9. 

totiMfiU    PWrei  <Ji!  b    Terr*-,  a^rroMfit  tie-  The  CoB.ziin»  tefi  t^  LaHn  «•  tta  tW 

OManez,  w^\mpfnz^ ^  dnciM  uf  !#•  f»an  4e  par-  doiAciiM.  bin  tbe  ComsMDi  Hook ka  C^Hl 

knttflt,  4c  ti0sm\'^.  (AT  U  L//V  Crvi]«,  wt  par  and  a  Court  of  Record.'* 

antral  pLia  ban  cfcKirte.  du   R^Sme:    qa*U  l^^—Cam.  Joum.  roL  1.  p.  545. 

daym,  iitifrti:,  ie  fraochiM:  le  K/iv  lour  be-  .  '■>  ^.'^'^^  *^  PreccdcBto  br  sr  £d«^i 
AiffMsneot  afloua  ^  ottrviia  «n  yCtin  parle-  Coke,  d  b  amed,  -  The  Hour  of  Caa» 
tamL  :  mooa,  alone,  hath   a  power  01'  pnaialiaKil; 

«o   u^    ^      »^     n^-i        .  and  that  judicial  "—HaU'.taae  43  li»uu,«ii 

39  Htn.  6.     If«t.    Pkri.   rol.  r.    p.   «39.—     Lonr*!  CaK  5  EHz  cit«i 

Thorp's  Ca«r.  1^-^  1  ^-e  ;»  ««.  craa. 

The  Hariri  I^ordea  Hpiritu«4z  and  Teroporelx  ^^"'  •'****^  4th.-Coni.  Jouni.  toL  ix.  p.  854 
not  eiit»Yii1yin(p  u»  emu^^hp  or  hurt  the  LiWr-  i  ^  ^«  matter  of  the  appellant  juriadictiQn  4 
U-tm  and  yrtir'i\t^(^*rH  of  thf\-ni  that  were  c«>me'n  '  ^^  House  of  Lords,  the  CoianHNw  aasot  thdi 
for  the  rrommiine  of  thin  fande  to  tf  'n  present '  "^^^  ^*  to  punish  b^'  •— pT-^nnrnT  n  1  nmninti 
parierii#^it,  but  «i(aily  nfUrr  the  imin  of  (awe  tf> !  ^^  >s  I^T^y  <^'  tudatuig  ibeir  phvil^cs,  tfag 
myiiv<itnr  jiMtiff,  snd  to  harf^  knowlef(i|;e  what ,  'm^ui^  aoconling'  to  the  known  hws  and  ciutofl 
th«!  lawc;  wilt  wi-y  in  tliat  liclwkf,  ofiened  and  '•  ^  i^iriiainent  and  the  right  of  their  pnvilega 
flef:lan;d  tothcjuHtiri'H  the  jinrriiifMez,  and  axed  '  ^'^cl'uvd  ^y  <^e  kiug«  m%al  preiectaiaiinji 
of  Uieni  whHlHT  till:  wrid  Thtnnas  oii^t  to  be  [  fcMmer  Pkriiamenu  and  by  huuself  ui  tUi;'* 
delivemi  fnuii  yrvtim^  by  force  and  vertue  of  *^.  ."  ^^  neither  the  Great  Charter,  tiM 
thir  pn¥v\t'^*  of  iMirii'nMiit  or  nofi.  To  the  ,  ^^^^  of  Kight,  nor  any  other  laws,  do  tab 
whirh  r|iif-Htiori  thi;  rliff«  yt^^n,  in  the  nam^  '  ^^y  ^^  ^^  and  custom  of  Parliament,  or  ti 
nf  all  till*  juHtiff/,  aftfT  maddi*  oominufiicatioii    ^^^  ilomr  oi  Parliauient." 

and  maturi-  d.^lt«.n.ti.n,  hadibr  ani.nijr  theein,       1701.-V0I.  »ii.  p.  7C7.-Kentidi  F^stitMo. 
auimwin-d  and  Hiiid»  that  thfy  miifht  n<it  to  .    f  •*"       »«mw.  * «■•••«. 

aiiniiW4<n;  to  tliat  ipii-Hf inn,  fur  it  hath  not  be  Kawdved,  Thai  it  is  the  opinion  of  tlyi 
iiMfl  afon*  lyiuc  iliat  tin- just irvx  slioubl  in  euy  |  coiuuiittfe,  thai  to  assert  the  House  of  Con* 
w^wdi'ii'nnini*  thi*|irivilrtf;^M>fthiNlrighe<iiirt  nMfB**  ha>e  no  power  of  commitmeut,  hut  a( 
or  |iarli*iiiriit.  tlieir  own  meniben,  tends  to  the  suliveniioii  d 

^  II...    a     Tu    -  • -•.   I  i«  ji  •     ^1  ••        the  constitutiouofthc  House  of  Comniuns. 

4  Hra.  8.     }^'^riKitw^  lUAl  in  Uie  pariia-        k«ioIto.I,    That  it  is  the   opinion   of  itt 
mi^it  ofllre.  -Htroude»s  Case.  coiumitlee.  That  In  print  and  puSLih  any  boofti 

or  libeb  redecting  upon  Ike  procMdiuga  ol  Ih 


i«  Ilia  aoi  c«iiie*nytig  Kiokard  fitroude 


f9]       STATE  TRIALS,  32  Charles  II.  iGSO.^FrMlege  of  Partkimeni.        [39 

**  barons  of  the  Exchequer,  are  assistant?  totha- 
"  Lords  to  inibmi  tlieni  of  the  ctnnmoii  law, 
"  and  thereunto  are  called  severally  by  virit : ' 
*'  neither  doth  it  belong-  to  theni  (as^hath  been 
"  said)  to  ^udse  of  any  law,  custom,  or  pri- 
"  vilecfe  of  paflianient :  An<i  to  say  the  truth, 
**  the  laws,  customs,  liberties,  and 'privilegies  of 
*<  parliament,  arc  better  to  be  learned  out  of  tiie 
**  rolls  of  parliament,  and  other  records,  and  by 
**  precedents  and  continued  experience,  than 
'*  can  be  expressed  by  any  one  man's  pen/' 


Htaie  of  ComnMm,  or  any  member  thereof, 
fersr  rdatinfr  to  his  serrioe  therein,  is  a  hiffh 
fiMoB  ol'  the  ri^ts  and  privileges  of  the 
H«K  flf  Commooii. 

Ashby  and  White. 

Cflnftreneps  between  the  two  Houses. 

1W  Oommoiis  at  the  second  conference  with 
dtt  Lwdi  ne  amert  their  Resolution  of  1701 : 

**  For  it  b  the  ancient  and  undoubted  rif^ht  of 
**  dtt  Hsmeof  Commons  to  commit  for  breach 
*  tfpiii^ve ;  and  the  instances  of  their  commit- 
**  B^  fVMNK  (not  membern  of  the  House)  for 
**MMh  of  pririlege,  and  that  to  any  her 
**B|pH^'s  prisons,  are  ancient,  so  many,  and 
**■  v«  Blown  to  yom  lordships,  that  the 
think  it  needless  to  produce  them." 
.  vol.  xyii.  p.  709. 

Ijords  Joum.  vol.  ^i^P-  714. 

Ik  Lords  in  answer  say, — "  The  Lonls 

'^Mffcr  disputed  the  Commons  power  of  com- 

*^  ittsi^  for  breach  of  privilege,  as  well  per- 

an;  not  of  tlie  House  of  Commons 

who  an.%"  iSec. 


Appendix  (D.) 

KKOttmoN  of  the  Law  and  Privilc^  of 
IWianieni,  and  of  tlie  Power  of  the 
HoiKe  of  Commons  to  commit  for  Con- 
ttvpt^  by  Leind  Authorities,  and  by  the 
lu^..: —  f^f  i^Qoxt%  of  Justice. 


Coke,  4  Inst.  fo.  15. 

Lord  Coke  observes,  upon  the  chum  of  the 
hn6i^  ID  11  of  Rich.  9.  sanctioned  by  the 
ks^  (as  naled  in  the  first  paragraph  of  Appen- 
da  C.)  oftler  the  head  of  '  Lex  et  Consuetudo 
"^  "imrsii;'  as  followeth — ^*And  as  every 
:sf  justice  hath  kws  and  customs  tor  its 
lioQ,  some  by  the  oommon  law,  some  by 
**  ihe  cifil  bw  and  common  law,  some  by  po- 
"caiar  bws  and  customs,  &c^  so  the*hi}j>;U 
of  Parliament  ^suis  proprijs  le^ibus  et 
subsistit— 'It  is  lex  et  oonsue- 


I 


hriianenti,  that  all  weip^ty  nuitters 
^  m  any  Parfiament,  moved  concerning  the 
•IVus  of  the  realm,  or  CommooN  in  Pnr- 
*  iimmt  assembled,  ouf^it  to  he  determined, 
"adpi^ipd,  and  diseussed  by  the  «oune  of 
**  ftrfiMncnt,  and  not  by  civO  law,  nor  yet  by 
**  the  oommon  laws  of  this  realm  used  in  infe- 
"  liar  eourta ;  whieh  was  so  declared  to  be— 
"artidom  legem  et  consuetudinem  Parha- 
**  mmti— oonosniing  the  Peers  of  this  realm, 
**  by  tkr  VtJBgt  «m1  all  the  Lords  sphritual  and 
**  iHipiral :  And  the  like,  pari  ratione^  is  for 
"  ftt  Commons  for  any  thiufr  moved  or  done 
'■^  House  of  Commons.*' 

Coke,  4  Inst.  fo.  50. 

And  OB  another  occasion,  in  treatii^  of  the 
GHStoms,  libertiea  and  privilei(es  of  the 
nn  9i  FaHiiunait,  whidi  he  saith,  ««  hath 
Jjbmmuch  deaired,  and  are  the  very  heart- 
'^MagBoT  tlie  oommonweahh :"  Lord  Coke 
■yi^-^All   the  jnstioes  of  England   and 


26    Car.    S.— 1674.— State   Trials,    Soame's 

Case. 

Lord  Chief  Justice  North  said, — *<  I  can  see 
'*  no  other  way  to  avoid  consequences  deroga- 
**  tory  to  the  honour  of  tlie  parliament,  but  to 
*<  reject  the  action ;  and  all  others  that  shall 
'^  relate  either  to  the  (irooeedinffs  or  privilege' 
*'  of  parliament,  as  our  pretfecessors  have 
"  done." 

^'  For  if  we  should  admit  general  remedies  in 
<^  matters  relating  to  the  parliament,  we  must 
*'  set  bounds  how  far  they  Shall  go,  which  is  a 
"  dangerous  province ;  for  if  we  eft,  privilege 
**  of  parliament  will  be  invaded,  which  we  ought 
'*  not  in  any  way  to  endamage*." 

1675.— State  Tria1s,^Earl  of  Shaftesbury's 

Case.* 

In  the  caso  of  the  earl  of  Shaftesbury,  who 
was  committed  liy  the  Housi;  of  L(Mrds, 
**  for  high  contempts  committed  against  the 
'*  House,"  on  being  brought  up  to  the  King's- 
liench  on  the  return  of  an  Habeas  Corpus, 
the  court  unanini«)UHly  determined  against  en- 
tertaining tlie  case;  wlien  Raiasford,  Chiefs 
Justice,  said,  '^  This  court  has  no  iurisdiction 
*'  of  the  cause,  and  therefore  tlie  form  of  the 
'*  retum  is  not  considerable.  We  onglit  not  to 
*'  extend  our  jurisdiction  beyond  its  limits,  and 
*'  the  actions  of  our  ancestors  wiii  not  warrant 
*'  such  an  attempt. 

'^  Hie  iM)usequenee  would  be  very  mischiev- 
'*  ous,  if  this  court  should  deliver  a  member  of 
*♦  the  House  of  Peers  and  ("oramons  who  an? 
**  committed,  for  tlierehy  the  business  of  par 
**  liament  may  be  retarJed ;  for  it  may  be  thp 
**  commitment  was  for  evil  behaviour,* or  inde 
**  cent  reflections  on  other  membo^  to  the  dis< 
"  turbanre  of  the  affairs  of  parliament. 

"  The  commitment  in  this  case  is  not  for  safe 
*'  custody ;  but  he  is  in  execution  of  the  judg- 
*<  meat  given  by  the  Lonls  for  contempt ;  and 
**  tlierefore,  if  he  should  lie  bailed,  he  would 
"  be  delivered  out  of  execution ;  for  a  contempt 
^^  infuciecuridB  there  is  no  otlier  judgment  or 
**  pxivntion. 

"  Tliis  court  has  no  jurisdiction,  and  tlicre- 
**  fore  he  ought  to  be  reniandeil.  I  deliver  no 
*'  opinioii  whether  it  would  be  otherv^ise  in  case 
"  of  a  prerogative." 

1751,  Feb.  7th.— 1  Wilson,  p.  200.-«Marray's 

Case. 

Wlien  he  was  brought  up  to  the  King's- 
*  See  vol.  6,  p.  1270  of  this  Collectioo. 


"-  recsn  of  Qts 


^  To  t^  I  aisfvpr.  tbax  a  kis  hMa  detpr- 


vTccfrfTJoc  -^-u  r;r 


-  CHC 


^  A 


!n  %y  3c   Hii)«k»  CorcGfw  tee  cvort  .-v- 

bun :  jkCii  30  r::?e  bx;  b«ea  ci^ 

-  cnnrx  la  tis  jnmrriar :  tai«  i.r^iT'.  •l^uuhm 

-baiL- 
I>£nniiwiL.    Jusnof.  —  ■-  TLs  •.■*j«;-:':  fc»    &? 

•-  *h«  Hiii«ntf  T'lrvm*.  inc  V&yv*^  wine  the 

-  ci''rxautxni?s£  wts  :  War  iii-w  3  aprenr*  w  ^t? 

-  «f  C*iiiiiiii]ai« :  «tut   ■.;»*?•«*•  »irT^*.!ie;£i»    •/£' ■*!- 

-  W«!  \.rL=ntiC  Hlif|£i!    «IC   z :    i>»r  1  XUrSC  0-4u    LS.S 

-  cwixr:  nfcmr  ib  the  Hoosp  or  C'Ms Ji<}i»  ^rt.i 

-  <noapii!;33£ruiBictii^m.    I  £TT«mTi*h»«,r:i:«;ri 

-  «>  iriiiiieiiiT.  thwaiBit  1  think  :t  a  cieiu  cube. 
"*  shI  rafBRS  BO  tune  Ar  cmskfriraQon.  " 

»•'  m  part  otf  the  Iw  nf  ihe  hod :  in^i  there 
«»  wmU  be  aa  cad  olf  aA  bw.  if  die  H  rase  ot 
««  ConDBnos  iwJJ  aoC  eommit  lw  a  confieoipc. 
■*  AD  cimrti  «f  reeonl  ievoi  the  Eq««st:  cuy 
•*  CA^qi*  fiir  a  cvntempc ;  iml  lori  H'liL 
'*  thon^  he  JUKend  with  the  odier  jmJ^««.  y*si 
"ks  Huuse  anchc  cumiwc  turicua- 


«t  A 


SI]  STATE  TRULS.  S«Chul£s1I.  UiO.-^PfwcudmgwtgsuuilLTUMtft&m:  [n 

hT  a  Hdhefti  C«cpK.   aad  the  com  *  Lotd  Navw.  «ho  ns  CRUBined  10  the  Temr 
!>>  ^Hcharse  him.    Mr.     bir  ondEr'ti^T  tbcf  Hook,  nader  the  Spcaiia^ 
L    -  It  affean  cpM  the     "*" 
[ibek»    C'crrKS.    thai    Mr. 
T  tf  aic::2«!c«i  u>  New^e    Vr  the 
cf  C<«=i=33f».  ^jr  aa  hf^  im  dan-     ar^imL  a^i.  bj 
ccesnciK  «C  tbe  pcirui^npf  •:<    i^u     tive  Oxrt.  he 

s»BCv  iB»Geii«Gaz  taebar.         The  LcHCtBClfJi 

the  «piBA  «c'  ibe  Cost. 
'-  p.iwcr.Ttr.  «t  CI 
-*  D  :be  HtiOHe  ^  C- 

*-  o('  ;he  Sav  'f  the  uad. 

~  Kr  ot  e»!«Ouce.  die  v 
"  Dk&yiics. 

-  j^rcVeii.  thai 
*'  ^  ivaumpci..     Jl2 

t!aeC:«rt 

H<Qse. 

•■"  Tkf  Stu.  "f' Janaes  X.  capL  15. 

"  po>re»  Ufci:  ii>*yjiftTi?  paver  b» 
••  ;iiese  wvfti*       ~ 
•■  .%tft  or  aay 

"  1-^  be  I^fnrazw  br  cvawue  m 
"  di^t«il  awe  inj'vitrsiivt  which 

-  oaakff  «>r  pc«?oirv  to  Qe 
"  M  aJN^cesLii :'  «>  tSais  r.  si  dmhc  ctwr  ihfll  ihi 
-'  bfz^:«&tcsre  have  r^xv^Tuzcii  :aa»  ftpmu  ef  Af 
*-  H*Mse  oc  ComiSi'ci.  I2  the  case  ef  dM 
-*  Vvi^fsbarT  ram.  the  o?<uBwi  ^frnined,  Lni 

-  i'Wt'  Jisitxe  H«ilc  -var^Mii.  anrf  iSie  H«aMd 

*  Ldrb  arfciwwMsr^'.  cue    the    H«Mr  d 
-*  C4KM3MK  had  pMwvr  v» 

-  tRB^  ttr  bnnch  gr 
*-  ieuiu»  coey  jB}£tt  h«i«^  pi 
•*  aay  cn.Tie.     H  b«*ii  the  Hi 
'•  1:*;-*^:*;   isy  iIiiD«|C  •»»  ■")e  a 

-  :».r:'Ti.t:i>ii.  loit  a»"ir  i.i)aLaiit!ueiis  i 
••  ;;i»:cce  la  «.Y^**jz:i>n :-  vni  »>  O 
-*  'ijichurisr?  'IT  inid  A  Dvrson  thu  is  m 
"  t»Mi  3v  die  iiir?:rM«fnt  -k*  law  icher  Coart.' 

Vn:  !itf  cjnotuiieiL  2a  juii^mein  a  thw 

■'  I  ani  lertmi;)!  sics.'M  that  df  bird  Hal 

-*  Sfiwefar'  w*:i-^  :.j  jiiv>^  <ieteniiJiutd  x.  the  lisn 
•-  >Liy»?»-  w'cii  i:i-.;;  Sitsi  reiaannVtl.      la  tb 

•  cise  •»  Mr    M'ir-iy,  !*e  jvivv^  o««U  bo 
oJaofr::iii:£  ue  uimaniipc  hv  a  aai 

-  wae  Knew!  so  ri-.'wvf.  '^^  seneence  'it  a  ^go- 

-  per  'K^san  ;  iJ  :*bf     iiitj^n  i;;i?«ed.  that  b 
~  must  be  r«ii:aai(K*i.  be^noiw  be 
■■  Bur?!*!  *)¥  A  CoiiTt  larju;  0 


n 


ffi 
u 
u 

It 


a  the  fiee  of  the  Hook.     JL»  lur  the     *  htsxxx 

DO  nutxe  <Mf  it. 


ailio 


138. 
177  U 


Cpqhow 


eA|.  the 

hetaaAer  in  this  CoQecciin. 

tfaac  aiitice  if  the 

vtJaaBfm  tfani  Cotlecnim.  h. 


t 


I 


Vent.    If.    WIS    1  C«iiuiuirsieiit  -ji 
jou  thervpife  -<:  was  le^.-ewam  it  diat 
scue  the  <vitift:a«.*v.  ver  lur^  Cuiiftieti  in 
HoiHfu  Curuiai  Caae%  u  3.  ir;sS«  a  this  Col- 
leetwu. 


53}       STATE  TRIALS  39  Charles  II.  iGSC-^Privikge  of  Purliamad.        {Sl 


"  UBce  of  tlie  acts  of  the  Houses  of  Parlia- 
"  BcnCy  hecause  they  belong  ud  aU*td  ejcaNiCn. 
**  I  hive  the  most  perfect  satisfaction  in  my 
**  ova  mind  in  thai  determination.  Sir  Mar- 
«*  lia  Wfwhl,  who  feh  a  generous  and  distin- 
**  ggyieawarmth  for  the  liberty  of  the  sub- 
*<ject;  Mr.  Justice  Dcnison,  who  was  so  free 
**  fitm  conaedJons  and  ambitiou  of  etery  kind ; 
*  ad  Ur.  Jostioe  Foster,  who  may  be  truly 
■*  cdkd  the  Alagna  Charta  of  liberty,  of  per- 
'MMai  weO  as  fortune;  all  these  revered 
'■■ifBi  concurred  in  this  point.  lamthere- 
•*  ma  dsttiy  and  with  full  satislaction  of  opi- 
thit  the  Lord  Mayor  must  be  rc- 


u 


OobH  Just — *'  I  entirely  concur  in  opinion 
"wik  my  Lord  Chief  Justice,  that  this  Court 
"  Ml  no  oognizance  of  contempt  or  breach  of 
"  privilege  ot'  the  House  of  Commons ;  they 
**  m  the  only  judges  of  their  own  privileges ; 
"  ad  diat  they  may  be  properly  called  ju&es, 
"ifpamia  4  Inst.  47,  where  my  lord  Coke 
**  mjgg  an  alien  cannot  be  elected  of  the  par- 
**  fioMBL  because  such  a  person  can  hold  nu 
"ifaee  Off  judicature.  Much  stress  has  been 
■^ludi^oo  aa  objection,  that  the  Warrant  of 
u  tko  fioMlrMi  is  not  conformable  to  the  order 


■'flf  the  Hoinae;  and  yet  no  such  thing  ap- 
*iHn  19011  the  return,  as  has  been  pretended. 
"ihe  Older  says,  that  the  Lord  Mayor  sliall 

*  be  tslDOi  into  the  custody  of  the  scrjeant  or 

*  \uM  deputy ;  it  does  not  say,  by  the  serjeaut 
^  ff  his  depnty .    This  Court  cannot  know  the 

*  utaae  and  pofwer  of  the  proce^ings  of  the 
'  Hoose  of  Cfommons :  it  is  founded  on  a  dif- 

*  ftrnt  law ;  the  '  lex  et  consuetudo  parlia- 
'  *  iBcati,*  is  known  to  uarliaroent  men  only. 
»TicivyHniard'aCase,  Dier,  59,  60.  When 
**  wnai  of  priTilege  come  incidentally  betbru 
^  the  Govt,  It  is  obm^  to  determine  them,  to 
"  pRffCBt  a  Allure  injustice.  It  is  ixwi  this 
"  esnrC  did,  in  Uie  instance  alluded  to  by  the 
'  eooBsel  at  the  bar,  [Wilkes's  Case,  9  WiU. 

*  151.]  determine  upon  the  privilege  of  parlia- 
''aaitin  the  case  of  a  Liljel ;  but  then  that 
'privilege  was    promulged    and  known;   it 

exirtea  in  recoru  and  law  books,  and  was  al- 
lowed hy  parliament  itself.     But  even  in  that 
eue,  we  now  know  that  we  were  mistaken ; 
for  the  House  of  Commons  have  simie  deter- 
■ined,  that  urivilt^  does  not  extend  to  mat- 
tm  of  libel.    Tte  cases  produced  respect- 
iag  Ae  lligh  Commission  Cuurt,  &c.  are 
■ot  to  the  present  purpose,  because  those 
'  aoarli  had  not  a  legal  authority,    llie  reso- 
'  klioB  of  the  House  of  Commons  is  an  adju- 
'  Aniion,  and  every  court  must  judge  of  its 
"  nrn  oontempts." 
Bbcksloiie,  Justice. — "  I  concur  in  opinion, 

*  Att  we  caimot  discharge  the  Lord  Mayor. 
'  He  present  case  is  of  great  importance,  bc- 
« «n.^  the-liberty  of  the  subject  is  materially 

Tm  Hoose  of  Commons  is  a 
e  court,  and  they  are  judges  of  their 
*«WB  prinlegcs  and  contempts,  more  espe- 

*  cidly  with  respect  to  their  own  members. — 
■  Here  is  a  mmber  couuoitted  in  cxevation 

vou  VIXI, 


(( 
i» 
u 

(C 
(C 
C( 
(C 

u 


by  the  judgment  of  his  own  house.  AH 
courts,  by  which  I  mean  to  include  the  two 
Houses  of  parliament  and  the  courts  of  West- 
minster-Hall, can  have  no  control  in  matters 
of  contempt.  *  The  sole  adjudication  of  con* 
tempts,  and  the  punishment  thereof,  in  any 
mmmer,  belongs  exclusively,  and  without 
intedering,  to  each  respective  court.  In- 
finite contusion  and  disorder  woidd  t>ilow,  if 
courts  could  by  writ  of  Habeas  Corpus  exa- 
mine and  determine  the  contempts  ot  other8.t 


*  Here  is  a  laxity  of  expression  which  might 
not  have  been  ex'pected  from  the  learned  au« 
thor  of  tlie  *  Commentaries.*  llie  meaning 
seems  to  be,  tiiat  the  two  Houses  of  Par- 
liament and  the  courts  of  Westminster- hall, 
are  not  subject  to  control  in  matters  of  con- 
tempt, but  that  other  courts  arc  subject  to 
control  ill  such  matters.  8ee  Clarke's  case, 
Tremaiiie's  Pleas  of  the  Crown,  442.  2  Le- 
vinz.  200.  1  Vent.  302.  327.  3  Keb.  704.  799. 
an.  Dr.  Bentlcv's  case  8  Motl.  U8* 
Fortescue  202.  2  Lord  Ra}iii.  133 1.  Strange 
567.  2  Kydon  Corporations  70.  In  Murray's 
case  Mr.  Justice  Foster  says,  that,  '^  all  courts 
of  Record,  even  the  lowest,"  [as  the  Court 
of  Piepoudre  we  may  suppose]  **  have  p<nvcr  to 
imprison  lor  contempts.^'  And  as  tu  contempts 
*  in  facie  curiar,'  which  obstruct  the  proceciliiigs 
of  the  court,  it  seems  that  they  nmst  of  neces- 
sity liave  power  to  remove  ihe  cb^^truction  ;  to 
abate  the  nuisance,  and  so  is  Moor  247.  *  Si 
*■  uu  dit  al  Judge,  Magistrate,  uu  auter  officer 
'  jNiroles  que  lu}'  disable  delaire  son  office  ou 
'  fiiitautor  contempt,  il  |ientluy  imprison."  So 
too  Dean's  case,  Cnike,  KHz.  Gl\9.  '*  A  man 
may  be  imprisoned  for  a  contempt  done  in 
court  but  not  for  a  contempt  out  of  court." 

So,  too,  is  Sparkes,  and  otiiers,  r  Martin,  1 
Vent.  1.  "  The  Court  of  Admiralty  may 
punish  one  tliat  resists  the  pn)ccss  of  their 
court,  and  may  fine  and  im|)risou  for  a  con- 
tempt to  their  court  acted  in  the  face  of  it." 

So,  too.  sir  George  Newman  says,  (Proceed* 
ings  and  Debates  of  the  House  of  Commons  in 
1621,  p.  109.)  **  The  Judges  have  oft-times 
cause  to  commit  for  contempt  in  the  Court." 

If  there  he  any  principles  of  law  whereby  tha 
sufficiency  of  a  commitment  for  contempt  may 
be  judged  ot*  in  the  case  of  one  court,  it  is  not 
very  apparent  why  the  same  principles  sboidd 
not  be  applied  to  the  judging  of  the  suf- 
ficiency of  commitments  for  contempts  by 
any  other  court.  That  courts  of  Westmin- 
sU^r-hall  will  take  conusance  of  each  others 
commitments  for  contempts,  see  the  aign* 
ment  of  Chief  Justice  Vaughan  in  Bushdl'a 
case  in  this  Collection,  vol.  (>,  p.  999,  and  the 
cases  of  Astwick,  Apslcy,  and  Mihon,  cited  in 
that  Case,  pp.  i()04,  1022. 

t  Loi*d  Mansfield,  in  the  case  of  Hassells 
and  another  against  Simpson  (9.H  Doiigl.  Rep. 
in  note  2d  edit.),  8|)eaking  of  3Ir.  Justice  Black- 
stone,  warned  nis  hearers  ngainst  impUcit  re- 
liance on  great  names.  It  would  ha^e  been 
more  sat^mctory  if  Mr.  Justice  BlacJuitonc 

D 


is]  STATE  TRIALS,  32  Charles II.  \6SO.^Proceeding8agahisi  R.1%ompson:  [: 


'*  Thw  power  to  commit  results  from  the  first 
'•«  principles  of  justice  ;  for  if  they  have  power 
**  to  decide,  they  ought  to  hare  power  to  pu- 

'Bad  specified  some  particulars  of  the  *  infinite 

*  contusion  arM  disorder*  which,  he  hiys  it 
down  *  woitWft)Hoif,  if  courts  could  hy  writ  of 
*"  Habeas  Corpus  examine  and  determine  the 

*  contelmpts  of  others;'  and  had  also  mven 
some  proof  thai  this  *  infinite  confusion  and  dis- 
order must  follow,  to«;ther  i«ith  some  account 
of  the  way  in  which  it  would  follow.  For 
there  appears  not  to  he  any  absurdity  in  sup- 
posing that  the  examinability  of  conimitnionts 
for  contempts,  might  tend  to  render  those  who 
'should  order  such  commitments  more  circum- 
gpect  and  cautions  in  the  exercise  of  that  power 
tnan  othervi'ise  they  might  be ;  that  it  would 
'tend  to  render  their  respective  courses  of  pro- 
ceedings les3  capricious,  more  consistent,  and 
more  uniform,  tlian  they  othcr\rise  might  be ; 
that  in  consequence  or  those  tendencies  it 
might  probably  by  desp'ecs  produce  an  iiitcUi- 
gmle  detinite  practical  code,  respecting  con- 
tempts and  the  punishments  for  toeiii ;  that  if . 
these  consequences  should  ensue,  <  confusion  and 
disorder'  would  be  prcrentcd  rather  than  pro-  . 
moted ;  and  that,  it  from  the  operation  of  com-  ' 
petitions  for  pre-eminence,  or  erroneous  no- 1 
tions  of  dignity,  or  of  any  other  cause,  '  con-  ' 

*  funon  and  disorder'  should  in  fact  arise,  such  ' 
'  confusion  and  disorder'  probably  would  not ! 
be  Infinite,  but  might  be  speedily,  easily  and  I 
completely  suppressed  by  a  legislative  cfcfmi- 
tion  of  at  least  the  limits  of  contempts,  and  of 
the  punishments  applicable  to  them.    Predic- 
tions of  *  confusion,  disonler,*  and  other  mischief 
to  ensue  from  intcrmption  of  tlie  exercise  of 
irregular  powers,  have  not  always  been  verified. 
Wlwn  tlie  powers  of  issuing  general  warrants 
and  warrants  for  seizure  or  papers,  which  had 
been  sanctionctl  by  numerous  precedents,  were 
ouestioned  (See  the  cases  in  this  CfilliKMion  of 
Leach  v.  Money,  and  others,  a.  d.  1765,  and  of 
£ntick  V.  Carrlnston,  and  others,  in  the  same 
yea#),  many  such  predictions  were  made,  but 
since  the  exercise  of  those  |K)wcrs  has  Ihh'U  an- 
nulled, 1  have  nut  met  with  any  complaint  (except 
indeed  one  wliirh  occurs  in  sir  J(»hu  Hawkins's 
life  of  Dr.  Johnson,  but  which  is  tix)  frivolous 
to  deseiTC  noticv ;  it  relates  to  the  detention 
of  artizaos  who  attempt  to  mii^ifntte)  that  this 
annulment  has  pnxliK'cd  a  single  bad  conse- 
quence.     In   like  manner  while  the    j'.ul^es 
claimed  the  rf  1:^1  it  of  droiding  two  (pK>stiuus  of 
fiict  (f«)r  such  thc*>'  are),  viz.  tlnisc  of  '  inten- 
tion' and  of  *  tcnilmcy*  in  criminal  prostra- 
tions for  HIkjIs,  wliicli  claim  was  buppDitod  by 
liie  pn'cedi-nts  ut'  Clarke's  case,   before  l<*rd 
liaymond,  <»f  Frani'klJTi's  casi?  licfurc  the  same 
judlfu  (in  tliis  Collecliou,  a.  o.  17151.)  and  of 

'  numerous  other  cases,  it  t^ns  renenteiHy  siHtcd 

'  liymagistrates  of  tranNoei:dant  talents,  learning, 

'  experience  and  authority  (such,  tor  instances, 

av  lord  MansfWld,  lord  llimloWt'lord  Kenyon, 

and  Mr.  Justice  BulIer,).that'frtiiui(cdLHonler 

iu>d  ronfusiun  wouM  mf^/ifjvau3B  had  the 


**  nish.  No  other  court  shall  scan  the  jud 
"  ment  of  a  superior  court,  or  the  princi) 
^*  0cat  of  justice.     As  I  said  before,  it  woi 

richt  to  determine  in  such  prosecutions  a 
omer  matters,  than  the  mere  tact  of  publicati< 
and  the  application  of  tlic  inuucRdoes.  T 
declaratory  statute  3^  Geo.  .S,  c.  CO,  has  fu] 
eslabliiSheu  the  right  of  juries  in  such  cases 

*  give  a  general  verdict  of  Guilty  or  Not  Guil 

*  upon  the  whole  matter  put  to  issue  on  the  i 

*  dictment  or  inibnnation.'    This  statute  ori| 

nated  in  the  House  of  Commons,  where  1 

motion  for  the  UU  was. made  by  l^Ir.  Fox  ■ 

seconded  by  Mr.  Krskine.      Most  undoubtei 

the  success  of  the  bill  is  in  a  very  high  degi 

to  be  attributed  to  the  inflexible  constancy  i 

unremitted  zeal,  with  which  the  latter  of  th 

two  ffreat  men  had  exerteil  the  \'ast  powers 

his  eloquence  in  maintenance  of  those  rights 

juries,  which  the  statute  asserts.     And  a  m 

striking  illustration  it  is  of  the  fallibtlitvof  tv 

predictions,  as  that  of  Mr.  Justice  BladuUme 

Crosby's  case,  that  whereas,  previously  to  i 

passing-  of  the  act  of  3'i  Geo.  3,  c.  60,  disagn 

ments  and  altercations  between  the  court  and  1 

counsel,  and  the  jury,  took  place  in  a  great  pi 

portion  of  the  trials  which  w  ere  had  on  cm 

nal  prosecutions  for  UUpIj  ;  and  notwithstai 

ing  It  had  been  declared  as  we  have  seen 

magistrates  of  the  CTeatest  learning,  that  I 

establishment  of  sucn  a  system  would  prodi 

infinite  confusion  and  disorder ;  nevertheless 

it  is,  that  since  the  indisputable  (*stablishiBi 

of  this  system,  no  confusion  whatever  has  < 

curred,  the  functions  of  judges  and  juries  hi 

been  eicecuted  M'ithin  their  respective  limi 

without  any  competition  for  jurisdiction ;  to 

advancement  of  justice,  and  to  the  dimity 

its  ailministration.     The    change  which  I 

been  operated  by  the  statute  rannot  be  m 

perspicuously  stat<?d,    nor  can   its   benefw 

effects  be  more  hnppilv  illustratetl  than  in 

following  passage,  whicti  I  extract  from  a  n 

on  the  *  subject  of  the  trial  of  the  dean  of 

*  .4saph'  in  the  *  SpcechcH  of  the  honoun 

*  Thomas  Krskine'  (now  loni  Erskine),  &c.  ^ 
l,p.  332. 

"  The  venoraWe  ami  learned  Chief  Jus 

Elord  Mansfield]   nndoul)t(>dly  cstablislied 
[is  argument,  that  the  doctrine  so  sixm  af 
wards  condemncil  by  the  unanimous  sense 
the  Legislature  when  it  jkasscd  the  I/ihel  i 
did  not  originate  with  himself;    and  thai 
only  pronounced  the  law  as  he  found  it,  esl 
I  lisheti  by  a  train  of  nio<l<Tn  decisions.     ] 
I  supportcti  us  we  now  are.by  this  jndgmen 
I  Parliament,  we  nuisl  vontm*e  humbly  to  dj 
I  from  so  truly  givat  an  authority.     ^Tlie  L 
:  Bill  does  not  cnnfrr  upon  the  Jury  any  jii 
;  diction    over   thi^  luw,  inconsistent  with 
general  principle  of  the  ootuiitutiuu :  Imt  i 
bidering  that  tlvc  finest  ion  of  libel  or  no  lib 


frequently  a  questinn  of  fact  rather  than  of  I 
andf  in  many  cases  (»f  fiu^  and  law  almoat  ii 
pfffably  MeiMled  togtsther  ;  it  directs  the  Ju 
as  in  other  umcs,  to  deli?er  hit  opinioii  to 


57}       STATE  TRIALS,  Q2  Charles  II.  l6S0.^Prhilege  of  Parliament.        [38 


*-  QOOMon  the  otiiKMt  oonfunon,  if  every  court  I 
*'  «f  this  Hall  sbouM  have  power  to  examine 
"  the  eoBimkinents  uf  the  other  courts  ot'  the 
**  HaB  for  oonterapts ;  so  that  the  jud^neiit 
**  tad  cmnmitinent  uf  each  respective  court  as 
**  to  contempts,  must  be  final  and  without  con- 
^tnH.  It  is  a  confidence  that  may,  with  per- 
■^ftd  SM&ty  and  security,  be  rejiosetl  in  tlie 
■< JQ%a  aiMl  the  Houses  of  Parliament*    The 

Jaiy  upon  the  whole  matter,  inchuling'  of 
eoone  oe  question  of  libel  or  no  libel,  leaving 
Aem  at  the  same  time  to  found  their  verdicts 
vmi  such  whole  matter,  so  brought  bc-fore 
nen  m  ia  all  other  rriminai  cases.  The  betit 
to  the  apprehensions  of  the  great  and 
Chief  Justice,  regarding  tliis  course  of 
pneeediDe,  as  then  contended  tor  by  Mr.  Er- 
Aine,  ana  now  established  by  the  Libel  Art,  is 
Ibe  experience  if  seFenteen  years  since  that  a(!t 


"  legislature  since  the  revolution  (see  9  ftnd  10  • 
*'  W.  3,  c.  15,)  have  created  many  new  con- 
*'  teiiiiits.  The  ol)jectiuns  which  are  brought,  • 
'*  of  aousivc  consct|ueut'ts,  prove  too  much,  be- 
**  cause  they-  are  applicable  to  all  coui-ts  of 
*'  dernier  resort :  *  et  ab  abusu  ad  usum  non 
** '  valcnt  consequoiitia,*  is  a  maxim  of  law  as 
<*  well  as  of  logic.  General  convenience  must 
'*  always  outweigh  partial  inconvenience ;  even 

of  divers  mischiefs  b«>tli  of  slate  and  common- 
wealth." 


"  Before  the  statute  it  was  not  difficult  for 
fc  MoA  abandoned  and  profligate  libeller, 
frills  eren  of  the  most  mali^ant  slander  upon 
prrrale  men^  to  connect  his  cause  with  tlie 
gnat  privileges  of  the  Jury,  to  protect  iniio- 
i.  Upon  the  Judge  directing  the  Jury, 
"     to  the  ukl  system,  to  tincTa  verdict  uf 


^aky  npon  the  fact  of  publication  ;  shutting 
iitf  altogether  from  their  consideration  the 
fnlity  of  the  matter  published,  ingenious 
eooBiel  used  to  seize  that  occasion  to  shelter  a 
goihr  indiridnal  under  the  mask  of  supporting 
great  public  right ;  and  Juries,  to  show  that 
any  were  aot  implicitly  bound  to  fmd  verdicts 
tf  Gnitv  upon  auch  evidence  alone,  were  too 
wnoeKfully  incited  to  find  improper  verdicts  of 
■e^iaaal :  bat  anoe  the  paasmg  of  the  Libel 
iAt  whea  the  whole  matter  has  been  brought 
vwkr  fiicir  eoosideration ;  when  the  quality  of 
the  matter  published  has  been  exposed  when 
criouBai,  add  defended  when  just  or  iimoccnt, 
paries  hare  listened  to  the  .nid|^  with  atteu- 
tioD  and  reverence,  without  being  bound  in 
Aeir  consciences  (except  in  matters  of  abstract 
hw),  to  fellow  his  opiniou,  and  instead  of  that 
aaeeitainty  anticipated  by  lord  Mansfield,  the 
admioistnitiim  of  justice  has  been  in  general 
■ait .  satisfactory,  anil  the  public  uutburitv 
been  vindicated  against  unjust  attacks,  with 
■oeh  gineater  security  and  more  supported  by 
pdific  opinion,  than  when  Juries  were  instni- 
K9lB  in  the  hands  of  the  fixed  magistrates  ; 
whibt  at  the  same  time  public  liberty  has  beeu 
Mnred  by  leaving  the  whole  matter  in  all  pub- 
iefibek  to  thejudgment  and  consideration  of 
[he  people.  This  reforraeil  state  of  the  law,  as 
iti|^anb  the  liberty  of  tlie  press,  is  noiv  so 
Mivmany  acknowledged,  .  tnat  the  highest 
aipiti  atiB  have  deelared  in  the  House  of 
Lonh,  that  no  new  laws  are  necessary  either  to 
Mpport  the  state,  or  protect  the  p  •»ple." 

ar  Eilward  Coke  (Proceedings  and  Debates 
tf  the  Honae  of  Commons,  in  1620  and  IG^I, 
ViL  «,  p.  109)  predicted  that  <«  if  the  mittinius 
iftha  riny'Cdimcil  most  contain  the  cause  of 
"■     "^     ""Jt  .^wnld  hinder  the  finding  out 


*  It  seems  generally  to  happen,  that  persons, 
who  either  {>oskcsk  or  lay  claim  tu  power  of  any  . 
kind,  arc  strongly  diKposcHl  to  be  of  opinion 
that  tlicy  may  be  safely  entrusted  with  such 
po^  er.  l^us  in  our  own  liistorr,  to  omit  the 
various  instances  of  claims  on  tbe  part  of  the 
crown  to  exorbitant  power,  and  to  confine 
oursclv(^  to  a  few  judicial  cases,  it  is  not  un^ 
reasonable  to  believe  that  privy-counsellors  of 
old  thought  they  might  be  safely  intnisted  with 
the  vast  power  which  they  so  mischievously 
and  oppressively  assumed  in  the  ancient  *  Court 
of  Uequestx  ;*  that  the  council  in  James  the. 
first's  time  thought  they  might  be  satcly  in- . 
trusted  with  the  power  to  suunuon  bciure  theiil 
membcis  of  the  Ilouse  o^'  Commons,  to  com- 
mand them  to  burn  the  notes,  arguments  and 
collections  which  they  had  made  tor  preparing 
themselves  to  a  conference  with  tlie  Lords  upon 
a  most  momentous  constitutional  question, 
and  aAerwards  to  imprison  and  otherviise  to 

Imnisli  them  fur  no  other  cause  but  that  they 
lad  been  assigned  by  the  House  of  Commons 
tu  be  agents  in  such  conference  (see  Hargrave's 
Preface  to  lord  Hale's  Treatise  on  the  Jurisf fic- 
tion of  tlie  Lords  House  or  parliament,  p.  ix. 
Note.) ;-  that  lord  Bacon  thought  he  might  safely 
be  intrustetl  with  the  power  by  arbitrary  in- 
junctions to  protect  debtors  Yrom  pa^^'ment  of 
their  just  debt*;  (see  Proceedings  and  IJebates  of 
the  House  of  Commons  in  lO'JOand  lo<21,  &c. 
Oxford  1766  vol.  I.  p.  157  et  seq.)  ;  that  arch- 
bishop Lautl  and  his  coailjutors  thought  they 
might  safely  be  iutnisted  with  the  arbitrary 
power  whicn  they  so  cruelly  exercised  in  the 
Courts  of  Star  Chamber  and  High  Commis- 
sion ;  that  Chief  Justice  Kelyng  and  other 
judges  thought  they  might  be  safely  in-> 
trusted  with  the  ariiitrary  power  of  fining 
H.w\  imprisoning  jurors  (as  to  which  see  the 
<^ases  of  Penn  and  1^1  ead,  and  of  Bushcll, 
ai/f,  vol.  6,  p.  951,  999,  and  the  notes  to  those 
cases  :)  and  that  Jefferies,  Crew,  Cartwright« 
W.right,  HerlxTt,  and  Jenner,  thouglit  tliey 
m  *glit  be  safely  intrusted  with  the  power  wliicu 
as  '  Conmiisionei-s  of  Ecclesiastical  AfiiBdrs'they 
employed  for  the  purpose  of  subverting  the 
protcstant  religion.  It  is  to  be  regretted,  that 
the  learniMl  judge  did  not  adduce  any  proofs  of 
his  assertion,  that,  "  this  ct>nfidence  may  with 
|ierfect  safety  and  security  be  reposed  in  the 
Judges  and  the  H«mses  of  Parliament ;"  for 
indee<l  the  tnith  of  the  assertion  is  by  no  mean5 
self-evident.     It  is  >udicieut]y  obvious  that  thft 


991  Bl'ATE TRIALS. 32  CharlrsIT.  iSSO.'-^Proceedingi against  R.Thomp90t 


''  lAiroonng  (wlucli  in  mj  oonscienoe,  I  am 
^  fiur  from  soppoaitt^)  (ha^  in  the  present  case 
**  the  House  has  abused  its  power.     1  know, 

CMes  in  which  discretionary  uncontrouM 
power  is  moat  likely  to  be  abused,  and  in  whidi 
con«e<|aem!y  it  is  most  dangiproas,  are  thoae  in 
which  tlie  intereata  or  the  personal  feelingB  of 
the  parU;  exercising  such  power  are  conoamed. 
Now,  ir  it  be  so  indisputable,  as  the  learned 
jini^e  appears  to  haye  thought  it  was,  that  each 
ot*  the  Houses  ot  Parliament  and  that  courts 
may  safely  be  intrusted  with  a  discretionary 
nnconts-ouied  power  of  imprisonment  for  what- 
ever it  may  please  them  respectirdy  to  adjudge 
to  be  a  contempt  towards  themsefres,  in  most 
jof  which  cases  their  personal  feelings  at  least 
frill  be  concerned;  it  may  not  perhaps  be 
fbund  rery  easy  to  ahew  why  they  mignt  not 
aforiiorihe  still  more  safely  intrusted  with  the 
like  discretionary  uncontrouled  power  of  im- 
prisonment in  other  cases,  in  wnich  their  m- 
tcrcsts  and  their  feelings  are  not  concerned. 
But  I  apDrchcnd  the  learned  judge  would 
acarccly  have  maintained  that  in  such  other 
cases  they  might  be  safely  intrusted  with  dis- 
cretionary uiK'ontrouled  power  of  imprison- 
ment :  seeing  that,  in  the  first  Tohime  of  his 
Commentaries,  p.  i:^5,  when  illwitrating  "  the 
great  importance  to  the  public  of  the  preser- 
vation of  perKonal  liberty,"  he  says,  and  with 
great  tnith,  that  "  If  once  it  were  left  in  the 
power  of  any,  the  highest,  magistrate  to  un- 
prison  arbitrarily  whomever  he  or  his  officers 
thought  proper,  there  would  soon  be  an  end  of ' 
all  other  rigfits  and  immunities."  Yet  indeed 
it  is  very  easily  discoverable  that  if  a  vote  or  an 
adjudication  of  contempt  by  a  House  of  Parlia- 
ment or  a  court  be  unexaminable  elsewhere,  and 
if  the  power  of  imprisonment  ujion  such  vote  or 
fdjwlication  be  discretionary  and  uncontrouled ; 
each  Hoiwe  of  P^liamcnt  and  each  court  pos- 
sesoes  a  discretionary  and  uncontrouled  power 
of  imprisonment  for  every  action  and  every 
(Mnission  of  a  man's  Itfe  ;  naj^,  for  the  bare  un- 
proved imputation  of  any  action  or  omission  ; 
nay  even  without  the  nnputation  of  any  speci- 
fic actor  omission.  «<  If"  as  Mr.  Haigrare 
p  Jurid.  Aig.  and  CoQ.  16)Tery  forcibly  states 
it^  '*  the  doctrine  of  contempts  be  thus  wide  ; 
if  the  House  of  Lords  or  Commons  or  the 
Court  of  Chancery,  or  any  of  the  great  Courts 
of  Westminster  IJall,  may  construe  what  they 
please  into  contempts,  and  may  under  that  de- 
nomination without  trmhby  jur}'  convict  all  per- 
■ons  of  crime,  and  have  also  an  indefinite  power 
of  punishing  by  fine  and  imprisonment,  and  if 
aB  this  when  done  be  thus  unajipealableand  thus 
vnexaminable,  what  is  there  out  their  own  wis- 
dom and  moderation,  and  the  danger  of  ubusing 
80  afhitrary  a  imiwct,  to  prevent  the  House  of 
Ijords  «r  the  House  of  Commons,  or  any  court 
of  Westminster  Hall,  under  she'ter  of  the  law 
'of  contempts,  from  practising  all  the  monstrous 
tjrcanny  which  first  diKgraced  and  at  laigth 
•Ifarwhdmed  the  i^tar-Chambcr  ?" 


I 


<*  and  am  sure  that  the  House  of  Coi 
''  are  both  able  and  weD  inclined  to  do  j 
<*  How  prspostsrout  ia  the  present  m 

Indeed  the  Homae  of  CommoDs  hai 
manifyted  a  very  laudable  iealousy  of 
comnutaenta  by  others.  While  tne  e 
16Car.<l,  o.  lOy  waa  in  its  passage 
House  reaolrodf  (see  hird  Camden's  jud 
in  the  Caae  of  Entick  asainst  Carringt 
others,  a.d.  1765,  in  tSa  Collection), 
the  body  of  the  Lords  of  the  Council,  n 
one  of  tnem  in  particular,  as  a  privy  coui 
has  any  power  to  nnpriaon  any  treehoi 
ject,  except  in  auch  cases  aa  they  are 
rized  by  the  statutes  of  the  realm.'' 
all  one,"  says  lord  Hale  (Jurisdiction 
Lords  Houseor  Parliament,  p.  10?),  ''  t 
a  law,  and  to  have  an  authoritative  po 
judge  according  to  that  which  the  judge 
fit  siionld  be  law,  though  in  truth  there 
law  extant  for  it." 

How  far  the  condusion  against  the  tr 
the  learned  judge's  tiiftum^  to  which  th 
ceding  considerations  appear  to  lead,  hi 
fortified  by  experience  l  cannot  under 
affinn,  because  I  have  not  been  able  to  e^ 
so  extensively  as  that  would  require  i 
precedents  upon  the  subject :  but  if  thi 
cise  of*  this  discretionary  power  ahall  \n 
to  have  been  at  all  analogous  to  the  exei 
other  sorts  of  uncontroul^  discretionary 
as  recorded  in  our  history,  the  prccedei 
certainly  not  corroborate  sir  William 
stone's  gratuitous  assertion.  I  will  n 
a  few  cases.  And  first  au  action  of  t 
brought  in  parliament  in  18  £d.  t. 

*Mnan  action  of  trespass  brought  i 
liament  in  18  £d.  1.  (as  was  then  the  pi 
by  the  king,  the  king's  steward  6of  his 
YvM)  Peter  de  Chanet,  the  king's  mars 
his  household)  Walter  de  Fanecourt,  the 
Cornwall  and  the  abbot  of  Westminster  \ 
the  prior  of  the  Holy  Trinity  in  Londi 
Bo^  de  Clare,  (or,  as  the  record  express 
which  the  two  latter  persons  were  attac 
ans>ver  the  five  former)  for  that  tlie  sai 
served  an  eoclesiostical  citation  upon  the 
Cornwall  as  he  was  going  through  Westi 
Hall  to  attend  the  parliament  according 
writ  of  summons  he  had  received,  by 
citation  tlic  earl  was  oomnumded  to  ap| 
such  a  day  at  such  a  place  before  the 
bishop  of  Canterbury,  and  the  said  Ik 
Clare  procured  the  said  prior  to  serve  t 
citation,  which  serving  the  laid  citation 
to  have  been  in  contenii»t  of  the  lord  thi 
and  to  his  disgpraco  of  10,000/. ;  also  t 
been  to  the  prejudice  of  the  ecclesiastics 
cbise  of  the  abbut  of  Westminster  grant 
by  the  court  of  Rome,  by  which  Westi 
Hiill,  as  being  within  the  jurisdiction  > 
abbot  of  Wei^iinster,  is  cxem|vted  Ir 
jurisdiction  episcopal  or  archiepiscopal, 
the  abbot's  danmge  thereby  of  1,000/. 
hare  been  to  the  preindioe  of  the  office 
atewird  and  mamal  (of  the  king'a  hoQi 


u]       STATE  TRIALS,  SSCilABLls  II.  l6W>.—Pririlegt  t^  ParUamtnt.         [iS 


'tat  Mtm^uDt!  Hm  Hoom  of  ComiiMwa 
'■  knc  litis  pnwer  only  in  caminoB  whli  all  tike 
"MMtorWatmiiuter-IbU;  andifBiiytKr- 


tM  M  the  (bnwoc  of  llw  «rl  of  Comwall 

tmUte  bet,  urf  pat  thansdrei  npoa  the 
la^n^c]'.  And  jndgincBtM  gi*en  ■ninit 
itwitutitey  be  commiaed  to  tbe  Tower 
^nftbelunff's  pkanre.  AAenranIi  Bogo 
ttOM  m  tmeA  to  die  kmg  in  9,000  marin, 
(ipMHBi  BOW,  in  thoae  4lm«airor~— 
mi)a4tfne»ta  gay  ijOOS3l.  damagm 
■frfCnnwaU  ftr  the  tmpMi  comi  .  _ 
fma  Iwn.  which  the  eeri  of  Contrail  it  the 
iMaceof  the  biahopa  of  Ely  and  Diafaan, 
■<wh«r  gTPWt  men,  afterward*  remitted  ox- 

m^  100/." 

IMWT  eariy  caK  ia  tbu  ef  John  deNorth- 
■^  rdencd  to  id  the  Appendix  (E.)  (An*- 
%)B  dte  Report  heforc  lu-  Th«  man  waa 
''^fney  of  the  Court  of  Kiiic'a  B<acb,  (to 
■M  CKumatanee  attentiaB  tbooU  be  given 
'»ttaaltnaf[  the  eaae  aa  an  aothnrity),  anil 
tewetinea  of  the  judget  of  Uiat  court,  that  | 
^UiadepcDdenreenou^iDal  tOMBWa^ed  i 
^Njal  nmunaniU,  he  nrmi  ailjndg«d  in  10  doing 
■*bu«beeB|(uih}-of  a  contempt  of  the  court. 


'  KMu  may  be  aafely  tnwted  with  Ihii  power, 

■  tli«y  muat  sarcly  be  the  Commopa,  who  ara 

■  chi»en  by  the  people ;  for   their  privilege 


paased  upon  Fioytle  may  be  seca  at  vol.  3,  p, 
11.^3  of  Uiiit  ColleL-tion,  m  a  brief  report  of  hia 
caae,  wliich  appears  to  have  boon  tliroughout 
a  tlMue  of  irreKularit)-,  luurpation,  and  op- 
pteanao.  In  iUmtrattuu  of  tlie  tupic  noir 
under  eonuderation  I  will  subjoin,  at  the  end 
of  this  Cue,  aome  pauaues  respecting 
Ployd  which  occnmil  in  ihe  House  ot  Com' 
aaona,  together  with  lord  Oxford'i  rcprobalkni 
of  (he  mmwodinga  in  the  case. 

JnHidiai'a  Caae,  1631,  (aee  a  bctef  re. 
port  of  it,  vol.  9,  p.  1131,  of  tbia  Collection,) 


the  Uouae  of  Commons  took 


upon  tl 


into  imiloily, 
■■i  was  oUig«d  to  find  nainpemer*.  Itord 
Me  Am  rdalea  tliecaae,  with  Huie  eonfu- 
Mtof  JahBiodHobert. 

ICr.  18  £.  3,  ronm  rtgt  Jtot.  151.  LUtlUm. 
Ma  de  NonhamptoD,  an  attorney  of  the 

KiagVBMch,  wrote  a  letter  to  John  Ferrers 

Mfrfihekiw'Aeounael,  that  neither  sir  Wra. 

tecMrfjuUcc,  nor  hii  fetlowsthe  kinggjus- 
■n^  ear  their  cletka,  any  great  thing  would 
di  t^  tte  eonmuuidiDeDt  oTour  lord  £c  lung-, 
^■f^wes  PUlipi  ia  that  place,  more  then  of 
MT  nv  of  the  rcabn  i  which  nid  John  being 
oM.  enfcsaed  the  eaid  letter  by  him  to  be 


^ per  se  acr^tam  Roberto  dc 

Ffnm,  ya  4<  <k  concilia  regis,  qiuc  litera 

— = — ■  — ■■ —   — ^*"-in:    pnetextu 

etjuatidarioa 


r  prineev  to  be  a  brcBoh 
Mir  Men  prrvflems,  or  a  contempt  Iawai4 
■*as  Wl  *•  Mnk  •Mlcwe  «Urii  Ihey 


•■  IW  he  abmiU  be  h^  onwmthy  to  be  • 
jnatice  of  the  peace ;  and  be  dedarml  dimUe 
and  nnworthy  to  be  of  that  eommisitoo,  or  any 
other  w^Mtaoercr.  To  be  lent  at  two  of  (be 
clock  in  the  aftenooi  to  tiie  Tower  Ihroi^ 
the  Hreel  on  foot."— He  wa*  pardimed  to  hare 
•ay  forthcr  punisbment,  in  respect  of  hia 
&iher's  worth,  who  was  aecretary  to  Walstngf- 
ham,  and  sutfered  much  for  religion  in  queen 
Mary's  time,  and  wiis  then  held  to  be  »  very 
honest,  reli^iu  gentleman  \  And  so  MicheU 
was  railed  tii  the  hw  to  h«ar  Ills  sentence  on  hia 
knee.— ADer  uaitcncc  oaaced  he  desired  to  bn 
heard,  but  it  was  denied. 

Mr.  ChanceUor  of  tlie  Dulcby.  That  b« 
might  be  heard  oAcr  juilgmpnt,  so  as  it  he  ai> 
bumble  suit ;  or  any  thing  not  concerning  the 
sentence  given  by  lUc  Huuke. 

Sir  Edaiard  Cookf.  Tliat  he  ought  not  \a 
be  heard  afW  judgment :  And  so  it  was  agreed 
by  the  Vole  of  the  whole  House. 

In  the  same  year  the  House  of  Lords  sen> 
fenced  John  Blount  (tliis,  Mr.  Hargrave,  Juri- 
dical Arguments  mid  Collections,  197,  tells  ui 
is  the  first  privilege  precedent  he  flod*  fiir  im- 
priNonment  for  a  ti-rin  rertnb  by  Ihe  Lords)  (o 
the  pillury,  and  to  imuriionment  and  labour  in 
Bridewell  for  life.     His  offence  was  ROunter- 

It, 

the  Lord. 

Keeper  (thia,  Mr,  Margrave,  ub.  tup.  tells  u*  is 
the  nisi  privilege  pnM^ent  of  a  line  l^  iha 
Lords)  (o  a  fine  of  1,000/.  and  the  pillm}'. 
Two  olher  cases  I  will  n![iort  in  the  words  of 
Mr.  Hnrgrave,  (Prefiire  to  lord  Hale's  Tmct 
on  the  Juiisdir.tioiiof  the  Lords'  House  or  Par> 
liament.) 

"  Another  case,  in  which  judicature  aa  be< 
twcen  the  two  Hoiihch  became  the  tubjeet  of 
eoiisitle'ation,  ocrurrcil  soon  aAer  the  impeach, 
mcnt  of  lord  Clarenilon.  It  arose  on  petition 
to  the  Common*  from  a  BIr.  Fitton,  oomplain. 
ing  of  some  eierwc  of  jiirisdirtinn  by  thtt 
Lords :  and  on  a  report  of  ihe  case  from  a  ootn. 
mittee  that  the  matter  nf  jurisdiction  was  flt  ta 
be  aivued  at  tliu  bar  of  the  House  of  Commonf, 
the  House  ^luuinteil  a  day  to  hear  it  accord. 
in^y,  andat  tnesame  time  appointed  a  oan> 
nuncoto  iwiuire  into  prcoedents  in  casea  af  « 


43]  STATE  TRIALS,  32  Charles  II.  ^SsO^^Proceedmgt  agamai  R.  Thomptcn:  [44 


**  and  powers  are  the  privile^speR  and  powers  of 
"  the  peoj^e.  There  is  a  threat  lallacy  in  my 
«*  brottier  Glynn's  whole  arf^ument,  wlien  he 
"  makes  the  question   to  bi*,    Wliether    the 

like  kind  ;  and  amongst  the  C<»mmittee  were 
nani^d,  solicitor  j^reneitil  Finch,  aftcrwanls  lord 
eliancetlor  Nottiiifjfliain,  Mr.  Serjeant  Maynard, 
Mr.  Vauyfhan,  atWwanls  loi-d  chief  justice, 
and  Mr.  Pr\'nne  ;  and  tlie  thi'ce  latter  were  de- 
sired to  tiike  s^iecial  care  in  the  business. 
What  was  the  prf^ci^. nature  of  this  case  of 
Mr.  Fitlon,  is  not  Rtaled  in  the  Journal  of  the 
Commons  or  in  the  piiiitcd  account  of  the  de- 
hate.  Dut  from  various  entries  in  the  Journal 
•f  the  Lc»rds  tlie  substance  of  the  case  appears 
on  the  whole  to  have  been  to  thi!«  (^tfect.  Mr. 
Fitton  and  three  others  had  been  fornierly  pm- 
ceede«l  a<^ainst  l>cforc  the  li<»rds  for  contriviiijcf 
and  publish ins^  a  libel  upon  lonl  Gerrai'd  of 
Brandon  ;  and  the  1  jonls  in  July  1063  had  sen- 
lencc<l  Fitton  in  a  fine  of  500/.  to  imprisonment 
in  the  Kinuf*H-Ik?ncli  prison  till  he  should  pro- 
duce AbraTiain  (j  ranger,  whose  name  was  to 
the  libel,  and  to  fuid  securities  for  gfood  bclui« 
▼iour  during*  life,  with  direction  to  the  chief 
justiire  of  the  Kinjif^s- Bench  to  take  such  secu- 
rities. Uufler  this  sentence  in  a  case  at  least 
mixeil  with  privilege,  Fitton,  noiwitlistanding 
a  pronigation  of  parliament,  which  confcsserlly 
terminates  imprisonment  by  the  House  of  Com- 
mons in  privilege  ceases,  still  continued  in  pri- 
son ;  and  one  ^Villiam  Carr,  on  his  owning  the 
lame  libel  and  his  having  dispersed  it,  liad  been 
recently  ailjudgcd  by  the  Lonls  to  pay  a  fine  of 
1,000/.  and  to  iuiprisonment  in  tlic>  Fleet  during 
the  king's  pleasm*e,  and  to  the  pillory.  Being 
Wh  thus  imprisone<l  by  the  I/onls,  Fitton  and 
Carr  resorted  by  several  jielitions  to  the  C'om- 
mons  for  reliefs.  A  Committee  was  appointed 
upon  Carr*s  petition  as  well  as  upon  Fitton's. 
However  no  report  appears  to  have  been  ever 
made  u{)on  the  [letition  of  Carr,  and  what  Ik.*- 
camc  of  his  case  is  not  mentioned,  except  that 
three  years  afU^rwards  he  published  a  relation 
of  it  and  of  his  sufferings,  with  a  plea  against 
the  jurisdiction  of  the  Hcuise  of  Lords.  But 
Fitton's  |H'tition  wsls  re[)oi1ed  u|Mm  as  fit  for 
solemn  arginneut  at  the  bar  of  tbe  IIoiLse  of 
ComuKKis  as  to  the  jurisdiction  of  the  House  of 
Lords,  and  >vas  ordercil  to  be  argued  accord- 
ingly in  the  manner  before  mentioned.  It  ap- 
|Mears  also,  that  the  oiLie  was  argued  at  the  bar 
of  the  Coumions  by  Fitton*s  counsel  Mr.  Offley, 
who  said  some  strong  things  against  the  juris- 
diction oftlie  Ijords,  but  is  reproa(*hi>d  with  hav- 
ing so  closely  lM)rn)we<l  from  a  prior  argument 
of  the  solicitor  general  Fincli,  afterwards  lord 
chancellor  Nottioghuni,  at  th<'  bar  of  the  Lords, 
though  in  what  ease  is  n<<t  nu^ntioiied,  as  to 
havemdueeil  the  latter  to  leiive  tlie  Conunons. 
When  the  argument  was  <iver,  the  del>ate  was 
ai\joumed  for  a  week,  liut  the  Journal  of  the 
Commons  is  silent  as  to  any  further  pnK'ce^ling 
ui)on  the  case,  i^nibablv  ibis  ejise  became  ab- 
Borbetl  in  the  consideratum  of  tlur  great  case, 
which    aimobt    immediately    ioUowcd,    and 


"  House  hive  acted  according' to  their  right  or 
'*  not  ?  Can  any  good  man  diink  of  involvii^ 
"  the  judges  in  a  i*ontest  with  either  House  sf 
"  parliament,  or  with  one  another  ?  And  yet 

^ ■ 

brought  the  two  Houses  to  a  direct  issue  on  one 
great  branch  of  the  jurisdiction  claimed  by  the 
Lords  but  ilenied  by  the  Commons :  or  perhaps- 
tlie  Commons  thought  this  case  of  Fitton  aii4i 
that  of  Carr  too  much  mixed  with  contempt' 
and  breach  of  privilege  to  be  convenient  casH 
to  make  their  stand  ujion.  However  these  twa: 
cases  should  not  be  foi'gotten.  Eitlier  they< 
were  cases  of  breach  of  privilege  and  contempt, 
or  they  wei-e  not.  If  they  were,  the  contion-' 
ance  ot'  imprisonment  af\er  the  prorogation  af 
parliament,  the  fining,  and  every  other  part  afi 
the  sentence  in  both  cases,  became  disputaUar 
for  it  may  be  aske<l,  how  on  breach  of  privilCiM' 
are  the  Lords  warranted  to  do  moretlian  can  la 
done  by  the  Commons  in  a  like  case  ?  On  tfaa 
other  hand,  if  they  were  not  cases  of  privily 
and  contempt,  then  the  proceedings  of  tneLoirii 
ajgainst  Fitt(»n  and  Carr  were  oiten  to  the  objee*' 
tion  of  an  exercise  by.  the  Lonls  of  an  original 
jurisdiction^  over  crime,  of  having  ailjudged  a 
coniiuoner  for  misdemeanor  without  impeach- 
ment of  the  Commons  or  the  verdict  or  jury, 
and  of  having  so  expressed  the  imprisomnaal 
|>ai't  of  their  stintence  in  both  cases  as  to  make 
It  imprisonment  for  life,  that  is,  in  Fitton's  mi* 
less  they  should  interirase  to  declare  it  termiB* 
ated,  and  in  Can's  iwless  the  king  should  pleaaa 
to  determine  it.  To  some  of  these  objecikNii 
Mr.  Offley  did  in  effect  advert  in  argiung  Fifr^ 
ton's  cas-e.  In  remarking  also  upon  the  coo- 
sequence  of  such  an  exercise  of  criminal  jun^ 
diction  by  t!ie  peers,  he  nointedly  said,  *  tha 

*  juri.s<liction  of  the  Star-Chamber  is  now  trans- 

*  JTormed  into  the  House  of  Lords,  but  some- 

*  what  in  a  nobler  way.*  It  did  not  occur  tn 
him  to  add,  that  the  jurisdiction  of  the  Star- 
Chamber,  though  justly  odious  both  for  tkic 
mode  of  trial  and  the  excessive  punishments  il 
had  inflicted,  and  therefore  wisely  diolished, 
was  in  some  degree  sanctionefl  by  the  8ta*atei 
of  the  realm  :  but  tliat  it  remained  to  explain, 
how  the  House  of  Lords  had  obtained  the  Ufa 
or  any  other  sufficient  sanction  for  exercising 
the  same  jurisdiction  ;  and  how  it  could  U 
proptT  to  tolerate  that  in  an  hereditary  kind  o 
Star-Chaml>cr,  without  the  sanction  of  statute 
and  without  any  other  limitation  than  such  ai 
their  own  moderation  should  prescribe,  whu4 
the  legislature  had  so  indignantly  abolished,  ii 
the  case  of  a  court  sanctioned  by  statute  am 
not  pretending  to  adjudge  crime  of  a  highei 
oifler  than  misdemeanor." 

It  may  be  (|ucstioiied,  whether  in  answer 
to  what  has  been  stated,  it  will  be  Uiought  suifi< 
cient  to  alledge,  in  support  of  Mr.  J  ustice  Black 
stone's  assertion,  that  the  moderation,  tlie  up: 
rightness,  the  intcgiity,  the  regard  to  jiistici 
and  to  rational  lil)erty,Vhich  now  character«< 
the  procfx.'dings  of  our  Houses  of  Pariiameq 
and  of  our  Courts  affoixl  us  security,  that  siniifau 
proceedings  will  not  hcrcailer  occur. .  WluU  Im 


n'ATE  TOIALS.  32  Cbablbs  II.  \6s6.~Priviltge  of  Parlianimt. 


bee  Mtb  i 

mnm  ii  the  only  judge  uf  i1 


mtv  be.  Lmws  Are  nrovideil,  uU  the  insti- 
iviateirty  are  establinbod,  nnt  upon  con- 
c  of  tlu  eoud  vhtch  we  hope  men  will  du, 
naporeb^nuEnortbecTil,  which  we  know 
nj  Jo.  True  il  ii,  llierc  is  no  immediate 
ti  upteheniriuD  tlmt  mrn  will  be  net 
far  pUurv  and  (.-oDdeniiipd  to  liord  labour 
('■  ftgaot.fur  couaterfcltinif  aliOrd'spro- 
D :  bat  that  most  [mwerfuf  ad^ot-ate  fbr 
Mk  ronsiitullonal  ii;uvcTincnt,  Sir.  Burke 
ftaioalbeCausesofthel'resentDin^ou- 
,  bu  left  lU  most  whnlesoTDc  wan]in|r, 
tpiUc  liberty  will  be  among  ua,  ns  ainou|r 
Mefton,  obooxiuui  to  «ome  )i«rson  or 
;  udilut  opiMjrtunitiesMillbelumiiilied, 
efting  U  KBEt,  Bomc  ultcralion  to  the 
Eee  of  uar  eouBtttutitni.  These  attcmjitii 
MnHjr  Tsiy  in  their  mode,  acconling  tu 
■4 rirrmiislaiKes.  Forambition,  though 
mr  the  same  yvneral  vIeivE,  has  nut  at 
wtbe  taiae  means,  nortlic  sanieparticu- 
fKCt.  A  (Treat  deal  of  the  lumlltire  of 
nnnnnv  la  worn  to  rai^ ;  tlie  rest  is  en- 
Mt  <if  ttihioB.  Besides,  there  are  lew 
■tofo  T«ry  clumsy  and  awkward  in  their 
!«  ulo  rail  into  the  identiisl  snare  whii'h 
!vi*d  fatal  to  their  preOec(»Bora. 
fben  ao  aHiitrary  imnosition  is  attempted 
the  Mibject,  undoubtedly  it  will  tot  uear 
ferelKad  thenaraeurSbiii-monev.  There 
tot(er  that  an  extension  of  the  forest 
rinold  be  the  cboten  mode  of  opprea- 
■ttil  Igv.  And  when  we  hear  any  in- 
•rf  miniMerial  rapncitv,  to  the  prejiidiec 
mn^tuaf  private  lite,  It  will  rertahilynot 
•  oacnoD  ut'  two  luimlred  [iiiHRtu  I'ruui  a 
■  •Tfaslii'iii,  for  lisiTe  lu  lie  witli  her  own 
ad."  r  L'siir  HuironiM  de  Nerit  dot  Domino 


Domino  Sim  llii)^ 


iij^iiG  d 


cSlcvill. 
I  de  Snnlnn)  At-  <viituiii  jinllinis 
c  Hnip>  de  eeiituin  {faliinlK  ndile^idifi 
caput  Ua»dra;rcsima> ;  etsiquie  ilbirmu 
t  wl  tune  reddendo,  redduitur  ud  pruxl- 

Paseh.  Rut.  fin.  6.  J.  m.  S.  dorsu.] 
'.Ttrr  KXc  has  it  mm  uiBitners  and  its  po- 
Irpeadi-nt  upon  them  ;  and  the  some  al- 
1  will  not  be  made  against  a  conslilution 
farmed  and  matured,  tliut  weri-  useit  to 
y  il  in  tlie  cradle,  ur  to  resist  its  yrnwtli 
f  itiiDraDey. 

Igainst  the  being  of  parliament  I   am  sa- 
il* irwa»  bare  bceu  ever  I'niertaiiied 
Aaicvounian-      Every  uiut  must 
^MkbalmiiiHv  the  interest  of  tlic 
MM^  HMMrid  etuue  interposed  between 
SI  and  the  people.     The  i^entlemen 
■■e  of  Conmitn*'  have  an   interest 
^n(  in  aiutaining  the  part  of  that 
It  caiiM.     However  they  may  hire 
iftan  of  their  voices,  they  Dtver  iviJ 
hi  Sm  uid  inlrenmnce. 


"judges  in  this  point,  but  we  must  be  gorenisj 
"by  the  eleven,  and  not  by  the  single  one. 
'*  It  is  a  right  inherent  in  aO  supreme  courts ; 
"  the  House  of  Coinninns  have  always  exer* 
"  cised  it.  Little  uicc  objections  of  particidar 
"  words,  and  forms  and  ceremoaics  of  execU' 
"  tier,  arc  not  to  be  regarded  in  the  acta  of  tha 
"  House  of  Commons;  it  is  our  duty  to  pre- 
"  aume  the  orders  of  that  House,  and  (heir  cxa- 
"  eution,  nre  acconling  to  law.  The  Habeas 
"  Corpus  in  Sliirmv's  Case  v 
"law.     Ic< 


LT  entirely  with  my  Lord  Chief 


1771.— Oliver's  Case. 
And  in  Mr.  Alderman  Oliver's  Case,  argaeil 
in  the  Court  of  Exchequer  on  the  27th  of  April 
1T71,  the  tour  judges,  CbierBBrunFoi'ker,  Mr. 
Baron  tjuiythe,  Mr.  Baron  Adams,  and  Sir. 
BaroD  I'errot,  unanimnusly  acknowledged  in 
like  manner  the  right  of  tlie  House  of  Cooi- 


1709.— Dumford  and   East's  Report*,  K.  B. 
Book  8,  p.  314. 
Flower's  Case.f 

In  the  case  of  Flower,  comraitt^  by  the 
Huiiie  of  Ijonls,  t'ur  a  liliel  nn  the  Usliap  of 
I^audatr,  on  his  being  broiit:ht  up  to  the  King's* 
Bench  npnn  Flabeas  Corpiks. 

Lord  kenyon,  Chitf  Justice,  said—"  If  we 
"  entertained  any  doubts  u[)on  this  aubjcO,  it 
"  would  be  uiibecomuig  iu  us  to  lusli  to  a 
"  ipecily  docisioD  n-itbout  looking  through  aU 
"  the  cases  cited  by  the  di^fendant's  oounsel; 
"  but  nut  having  any  doubts,  1  think  it  best  ta 
'•  <li!4>usc  of  the  case  at  ouce.  The  cases  that 
"  have  been  referred  to  arc  all  coUerted  in  lord 
"  Hale's  Treatise  on  the  Juriiidictiun  of  the 
*'  Lords'  Fluuse  >>f  |>arlinmoiit,  and  lliat  valua- 
"  lile  I'relace  to  it  iniblished  by  Air.  Hargrave ; 
>'  but  iii  tltc  whole  ot'  that  puUication  the  de> 
"  feiulaiit's  counsel  hns  luit  found  one  case  ap- 
■'  plin^le  tu  the  present.  This  is  one  of  the 
"  pluiiu-st  <|iicsil<nui  that  ever  was  discussed  in 
"  a  court  of  law.  Siuiie  tilings,  however,  have 
*'  drup|tt:d  from  thu  learned  counsel,  lliut  re- 
"  iiiiirc  aj)  anHwer: — First,  it  is  said  that  the 


'*  Acc(inlin<>ly  those  wlio  have  been  of  the 
mnstkniiwiiilevotiou  tu  the  will  aud|)lcasure 
of  tlieoiurt,  bavi'nl  tite  same  time  been  the 
must  tbrwuni  in  asserting  un  high  authority  in 
the  House  Iff  Ciimmoiix,.  When  tliey  knew 
wlui  weretnusc  tliat  BUtliority.and  how  it  waa 
to  Ih'  euiploynl,  thcv  thought  it  never  eould  be 
carrii'il  tiH>  far.  It  must  be  a'ways  the  wish 
uf  an  uneonMitutinnal  statesman,  that  an 
House  uf  Commons  who  are  entirely  depen- 
dant upon  him,  sIkiuIi)  bave  every  riglil  of  the 
lieoplc  dcjMUidont  upon  tlieir  pleasure." 

*  ^<ec  Mr.  Uargravc's  oliscn'atipiu  on  Ihi* 
case,  1  .lurid.  Arg.  and  Coll,  17. 

t  tk-e  litis  Case  heieBncr  iu  this  CoIInc- 


47]  STATETRIALSt  32  Citarlss  II,  \6V>.^Prouedhgi tgmmgi  R.  Tha^VBon:  (i 

IC    Tt^^^^   ^^V    ---»-   :^    ^m^  A    ..^M.^    ,M^..<w.M.^  .    aL.^«         ((    Alan*     *Ua    Utf^noA  aI*    Y  mmAa    X^.mmm  ma*     «l..i>   -     - -- 


*'  Home  of  Lords  it  not  a  court  of  record :  that 
**  the  HoQie  of  Lords  wheo  exercising  a  legis- 
«'  ktire  capacity  is  not  a courtof  record  is  un- 
«<  doubtedly  true;  but  when  sitting  in  ajodi- 
«'  dal  capacity,  as  in  the  present  case,  it  is  a 
«« court  of  record.  Thai  it  was  objected,  that 
<«  the  defendant  was  condemned  wiUiout  being 
<*  heard  in  his  defence :  but  the  warrant  m 
**  oommitmcnt  funusbes  an  answer  to  that ; 
*'  by  that  it  appears,  that  *  he  was  informed  of 
it  <  the  complaint  made  against  him,'  &c.  and 
«*  having  been  heard  as  to  what  he  had  to  say 
«'  in  answer  to  the  said  compbiint,  &c.  he  was 
•(  adjudged  *  guilty  of  a  high  breach  of  the 
<* '  privueges  of  the  House,'  Stc,  so  that  it 
**  clearly  appears  that  he  was  heard  in  his  de- 
*  ftntfe,  and  had  tlie  same  opportunity  of  call« 
**  mg  witnesses,  that  erefv  other  defendant  has 
f^-in  a  court  of  justice.  Then  insinuations  are 
<<  thrown  out  against  the  encroachments  by  the 
«*  House  of  L«rds  on  the  liberties  of  the  sub- 
«<  jeot :  but  the  good  subjects  of  this  coimtry 
<'  feel  themselves  protected  in  their  liberties  by 
•'  both  Houses  of  parliament.  Government 
«*  rests  in  a  great  ciegree  on  pubVc  opinion  ; 
**  and  if  ever  the  time  shall  come,  when  fac- 
*'  tious  men  will  overturn  the  government  of 
<<  the  country,  they  will  begin  their  work  by 
**  calumniating  the  courts  of  justice  and  both 
•<  Houses  of  iMtrliament. 

**  The  ground  of  this  proceeding  is,  that  the 
**  defendant  has  been  g^lty  of  a  breach  of  pri- 
^  vileges  of  the  House,  and  a  contempt  of  the 
«*  House.  This  claim  of  right  to  punish  by 
*^  Ane  and  imprisonment  for  such  an  offenre,  is 
<*  not  peculiar  to  the  House  of  Lords ;  it  is  fre- 
**  ipieiitly  exercised  by  this  and  other  courts  of 
**  record,  and  that  not  merely  for  contemiiti} 
**  committed  in  the  presence  of  the  court:  One 
**  instance  of  which  was  that  of  Mr.  Beard- 
«*  more*,  under  sheriff  of  Mi<ldle8ex,  for  a  con- 
*'  tendpt  of  the  oourt  in  not  executing  part  of 
<(  the  sentence  pronounced  on  Dr.  Slicbbeare. 
«*  And  tliat  case  answers  another  objection, 
«<  strongly  insisted  on  by  the  defendant's  coun- 
•(  sel  here,  that  if  the  party  accused  can  be  pu- 
«*  nished  in  any  other  manner,  tliis  moile  of 
«*  trial  cannot  be  resorted  to ;  for  there  Mr. 
**  Beardmore  might  have  been  indicted,  but 
**  yet  he  was  attached,  examined  upon  inter- 
•*  rojpitories,  and  fhied  and  imprisonea.  Again 
<*  it  IS  objected,  that  the  House  of  Lords  cannot 
*^  impose  a  fine  for  such  an  offence :  but  this 
*'  ana  other  courts  of  record  have  the  power  of 
«  finine  in  this  summary  manner ;  and  why 
<<  should  not  the  House  of  Lords  have  the  same 
**  power  of  imposing  a  fine  for  a  contemjit  of 
•*  their  privileges?  Then  several  instances  were 
**  alluded  to,  where  the  House  did  not  choose 
<*  to  exercise  this  privilege,  but  directed  urose- 
*^  cntions  to  bo  instituted  in  the  courts  of  law. 
•<  The  same  ol>servations  might  equally  be 
<'  made  on  the  proceedings  of  this  court,  who 
'*  have  sometimes  directed  indictments  to  be 
«  preferred.    We  are  not  therefore  to  conclude 


mm 


♦  Vide  «  Burr.  792. 


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that  the  House  of  Lords  has  not  the  pow 
of  inflicting  this  punishment,  from  the  ci 
cumstance  of  its  not  exercising  it  on  all  oec 
sions.  When  lord  Shafleobury's  Case  can 
on,  there  were  some  persons  who  wished 
abridge  the  firivilMfcs  of  the  House  of  LorA 
but  Mr.  Serjeant  Maynard  was  one  of  the 
who  argued  in  support  of  their  privilege 
and  he  surely  was  not  capable  of  concma 
in  any  attempt  to  infringe  the  libertiee  bfu 
peoi>ie.  It  has  been  said,  however,  lb 
though  many  instances  arc  to  be  found  i 
which  tlie  House  of  Lords  has  in  poinli 
fact  exercised  (his  power,  whenever  lb 
power  has  been  resisted  it  lias  been  reairti 
with  effect ;  from  whence  it  is  inferred,  th 
the  House  of  Lords  has  not  the  authodl 
which  it  assumes :  but  in  this  case  I  m 
avaO  myself  of  the  same  ailment  in  &voi 
of  its  jurisdiction,  for  no  case  has  been  Iba 
where  it  has  been  holden  to  be  ilkgaJ  in  tl 
House  of  Lords  to  6ne  and  im]irison  a  peiM 
guilty  of  a  breach  of  i>rivilege.  Wc  WV 
bound  to  grant  this  liaheas  Corpus  ;-b 
liaving  seen  the  return  to  it,  we  aixi  bound ' 
remand  the  defendant  to  prison,  because  tl 
subject  belongs  to  '  alind  examen.'  Then 
nothing  unconstitutional  in  the  House  i 
I^rds  proceeding  in  this  mode  for  a  bren 
of  priv-uogc ;  ana  unless  we  wish  to  asakti 
the  attempt  that  is  made  to  overset  the  Ll 
of  Parliament  and  the  constitution,  we  ni 
remand  the  defendant." 
Grose,  J.—"  This  question  is  not  new; 
has  frequently  been  coiisiden*d  in  couitii 
law ;  aud  the  principles  dLiciissed  to-dv 
and  the  rases  cited,  were  examined  not  mai 
years  ago ;  aud  the  result  is  very  ably  slift 
by  Lord  Chief  Justice  I>e  Grey,  m  3  Wl 
199.     *■  When  the  House  of  Conunoos  (a 

*  the  same  may  be  said  of  the  House 

*  Lor' Is)  adjudge  any  thing  to  be  a  cuotem 
'  or  a  bn^aeh  of  jtnvilegp,  their  adjudicati 
'  is  a  couvii*tif»ii,  and  tl^eir  commitmeoc 
'  consequence,  is  exccuti(Hi ;  and  no  olfa 

*  court  can  discharge  or  hail  a  pei'son  that  il 
'  execution  by  the  juvigiiivnt  of  any  oth 
'  court.'  In  another  [lassuge  he  said  *  Eva 
'  couit  mu^t  be  sole  judge  of  its  own  co 

*  tenints.'    And  agahi,  *  The  counsel  at  i 

*  bar  liavc  not  cited  one  ca^ic  where  any  coi 
'  of  this  Hall  ever  detciinioed  a  matter 

*  privilege  wliieh  did  not  come  immediati 

*  oefore  them.' 

''  Having  stated  this,  1  think  I  need  nol  m 
more  in  the  prtseut  case." 
Per  Curiaiu.t 

IjCt  the  defendant  be  remandi 


f  Mr.  Justice  Lawrence  was  not  in  con 
being  indis|K>8e<l ;  and  Mr.  Justice  Le  Blal 
havinf^  attended  at  the  Guildhall  sittings  I 
lord  Kenyon,  and  not  returiiinn*  tiU  the  ■!( 
ment  was  closed ;  gave  no  opinioiw 


■9]       STATE  TRIALS,  39  Cbaslrs  U. 

Apranm  (E.) 

Cud   bT  Commifaiieiita    for    Contempt    by 

ComtB  of  JuMiee. 

In  Micfaaflniu  Term,  18  Edwnnl  3. 
'  J(hi  Pe  NorthatnptOD,  aa  Bttomey  of  tlie 
Cwt  of  Kin^i-bencli,  oonfesiing  hiniEtlf 
giilr  vtwthiag  a  lc4l«r  rMpecdne  Iho  judges 
M'omitat  Kin^s-bench,  which  IcHlt  wii 
iii»lpi  ij  Uk  court  to  contaiD  no  trnth  in  it, 
uA  )•  be  calcuhled  to  excite  the  king's  iuilie- 
wrtaiyiiMt  the  emirt  and  the  judges,  to  the 
imW  (f  the  nidcwirtuHl  judge*,  waaeom- 
hiwdHihetnanM,  and  ordered  to  findtc- 
(■ilMi  Af  bis  good  hchariour.— S  Inst.  174. 
BiUryTenn,  11  Ann. 

A  Writ  of  Attocbmeot  was  issued  gainst 
IWoM   LHWaon,  liir   sppakinff  disrespectful 
Midi  «f  the  Courts  cf  QDren's-hench,  u|ioa 
bbong  serml  with  a  nile  of  that  Court. 
Hilary,  14  Ann. 

A  Writ  of  Attachnicnt  was  granted  against 
lAmd  HemUe,  for   speaking  disrespectful 
mAaflhc  Lord  Chief  Justice  of  the  Court 
4QaEen'*-bnx4i,  moA  his  warrant. 
Trinity  Term,  5  Geo.  1. 

AWiitef  Attachment^iainst Jones, 

httmi&g  the  process  of  the  Court  of  KingV 
Wh  eogtemptuouHly  ;  and  there  being  an 
■timatiM  that  he  icEed  on  the  sasistsnce  of 
tH  MaW'Woriunen  to  rescue  liim,  the  Court 
■M  tat  theritcriffof  Middlesex  into  Court, 
■dMdcredhimtotakea  auffirient   force.— l 


isTem,  OGeo.  1. 
A  Win  of  AnachneDt  was  granted  to  Richard 
I'ifc,  he  conlemptuouo  wmds  concerning  a 
wntfriM  a  judge  of  the  Court  of  King'S' 

Eaatee  l^nn, «  Geo.  1. 

■  Wilkiiw  Iwrinff  oonfemed  himself 

nik^oTfuUidiingftlibriupon  the  Court  of 
Myitanh,  the  diort  made  «  rule  coin- 
■iMgfain  tothe  marshal. 

He  next  term  Wilkin  having  made  an  affi- 
kilehanring  doetor  Colebatch  with  being  the 

iMkorofuie  libel,  was  sentenoed  to  pay  a  fine 
tf  3/.  and  to  gi*e  security  for  his  good  b«- 


inbryTmn,  rOeo.  1. 

Aa  Altmt^naent  waa  granted  against  John 

Buber,  esq.  for  cnDtem[iliious  words   of  the 

Unat  of  Kiuf^S'beuch,  in    a   speech  to  llie 

NO»on  eouncJ  of  London.— 1  Stim^e,  443. 

Hilary  Term,  9  Geo.  1. 

Doctor  Colebntch  hsTing    been   examined 

[   ^Bteringalories,  ft>r  contempt  in  ptiblish- 

I   |vilAel,  the  interrogatories  and  aiiKwer  were 

,  NMrnd  u  the  king's  coroner  and  aitomey  ; 

bi  Easter  Term,  9  Goo.  1. 
.  Or.  Colebateh,1)rang  in  the  fiustody  of  tlie 
'O'dttl,  wav  brought  roto  Court,  and  waa  n'li- 
''wtdto  pav  a  fioeot  SOL  and  to  give  security 
hUi  aoarf  behkrionr  liir  »  jeor,  and  van 
I   MMUedwiheaMriiaiaflMestini. 

'01.  Till. 


ifiM. — Privilrgf  of  ParVemrnt.  [50 

Michaelmas  Term,  9  Geo.  ]. 

A  Writ  of  Atlachiiicut  ma  granU'il  s^nst 
John  Uolton,  clerk,  iar  contLinptaaus  words 
respecting  the  wamiiits  of  llie  I.ord  Chief 
Jiuticeof  the  Court  of  K Liar's- bench,  al  a  meet- 
mg  uf  hia  poriiihioiivi^  in  the  Cburch-yaid. 
Easter  Terra,  9  Geo.  1. 

John  Wyalt,  a  bookseller  in  St.  Paul's 
Chiirch-yanI,  ]iitl>li!ihing  a  p.-unphlet,  written 
byDr.  Cooyers>IidTFIeton,  in  tlie  il'^icntiiin  of 
which  to  the  vice-chancellor  of  Camlnidge, 
were  some  nassajfcs  reflecting  upon  a  proceed- 
ing of  the  Court  of  Kinir's-beucli  ;  tlii:  (^uurt 
granted  a  rule  Furaiust  \Vyatt,  tu  shew  cause 
why  a  M'rit  of  Attachment  elinuld  not  issue 
agoiiist  bim  for  his  ei<iitt^iupl ;  and  Wyatt 
having  made  an  affitlaiit  that  CurneUus  Crown* 
field  bad  emplciyeil  liiui  to  sell  tlie  iii>ni[>hlet, 
and  he  bavin);  cliar^red  l)r.  Cnnyers  MiddletOD 
with  being  llie  author  of  it,  Crountiekl  was  dU- 
charged  upon  payment  of  the  «Mh,  and  a  Writ 
of  Attnrliment  was  granted  against  llr.  Con- 
vers  Middleton,  who,  in  tlie  next  term,  gave 
bail  to  answer  the  contempt ;  he  ivas  after- 
wards exaiuined  upon  internigatorit's,  and  upon 
the  report  of  llu'  kind's  coruuer  and  attorney 
lie  was  adjudged  tu  E>e  in  ccnienipl,  and  was 
committcil  tu  the  martial  in  execution  <|U0UB- 
qiie,  &c.  and  it  was  reli-rred  to  the  luasier  to 
lax  thuprusecutov's  coKlN. 

It  is  stated  in  Fortescuc's  reports  that  Dr. 
MiUillelon  was  RCiileneed  lo  pay  a  line  of  !>0l. 
arid  to  give  securily  fur  a  year ;  but  ni>  nde  fur 
KUch  sentence  has  at  |ii'est-nt  been  lound  ;  Bnit 
Br.  Culelnlch  hat  ing  received  such  a  Nenlence, 
for  a  similar  ofleuee,  in'  the  |ireee<ling  term,  it 
is  pusMble  that  this  senlrnce  may,  by  iiiisiake, 
have  been  applied  to  Dr.  Midilletun. 
Miehaelmas  Term,  5  Geo.  f. 

The  Court  granted  a  Writ  of  Attachment 
agiunat  lady  I^wli'Vi  ti>r  a  contempt  in  pub- 
lishing a  pa|iei'  relk'cting  upon  the  jwuceedin^ 
of  the  Court ;  and  she  having  been  exonuned 
upon  iutcrrc^tories,  was  in  Easier  Tenn  tbl- 
luning  reportMi  by  the  oSicer  of  the  Court  t> 
be  in  contempt,  and  was  conunitted  lu  the 
marshal. 

And  in  Trinity  Term  6  Geo.  3,  she  was 
brought  into  Court,  aud  a  rule  made,  xlalin^ 
lliat  "  fecit  Euhmiflsionem  situm  petivit  i  eniam 
"  de  curia  ;"  and  thereupon  she  was  lined  live 


also   examined  uixiii   iuterru^tories,  tor 

rblisliing  the   same   libeJ.     !j  BamBrdistouj 
•s  It.  43. 

Extract  fii>m  Atkjiis's  Rp|)orts,  Book  1,  p.  4<!t>. 
First  Seal  after  Mieliaeliuas  Term, 
Uw,  3,  1742. 
A  motion  agaiiiNl  lite  printer  of  Hic  Cham- 
pion, unil  the  pritiler  of  llieSt.  .lamcK's  Eveiv- 
ing  Post ;  that  the  former,  wlio  is  already  in 
the  Fleet,   niar  be  committed  elose  prisoner, 
and  that  the  other,  who  H  «l  Vn^,  «>?;  W 
£ 


$1'}  STATE  TRIALS,  31  ChAeIesIL  iSSO.-^Prcceedingsngahui  R.37lMq 


committ^  to  the  Fleet,  for  publishing'  a  libel 
Against  Mr.  Hail  and  Mr.  Garden,  executors  of 
John  Roach,  esq.  late  major  of  the  garrison  of 
Fort  8t.  George  in  the  East  Indies,  and  for 
reflecting  likewise  upon  ^governor  Mackay, 
governor  Pitt,  and  others,  taxing  them  with 
turning  affidavit-men,  ^c.  in  the  cause  now  de- 
pending in  this  court ;  and  insisting  that  the 
pnblishuig  such  a  pa(>er  is  a  high  contempt  of 
this  Court,  for  which  tliey  ought  to  be  com- 
mitted. 

Lord  Hardwicke,  Lord  Chancellor, 
'  Nothing  is  more  incumbent  upon  courts  of 
justice  than  to  presence  their  proceedings  from 
being  raisrcprescDted  ;  nor  is  there  any  thing 
of  more  pernicious  consequence,  than  to  preju- 
dice the  nofinds  of  the'  public  against  persons 
Concerned  as  parties  in  caases,  before  tlie  cause 
is  finally  heard.*  It  has  alyi-ays  been  my  opi- 
nion, as  well  as  the  opinion  of  tnosc  who  have 
sat  h^re  before  me,  that  such  a  proceeding 
on^httobe  discountenanced. 

But  to  be  sivre  Mr.  Solicitor- General  has  put 
H  upon  the  right  footing,  that  notwithstanding 
this  should  be  a  Ubel,  yet  unless  it  is  a  con- 
tempt of  the  Court,  I  have  no  cognizance  of  it ; 
for  whether  it  is  a  libel  against  the  public,  or 
private  persons,  the  only  method  is  to  pro<x^ 
fit  law. 

The  defendants'  counsel  have  endeavoure<l 
two  tilings— 1st,  to  shew  this  paper  does  not 
t^ntain  defamatory  matter ;  l?dly,  if  it  does, 
yet  there  is  no  abuse  upon  the  proceedings  of 
this  Court :  and  therefore  there  is  no  room  for 
me  to  interpose. 

Now  take  the  whole  trw-ether,  though  the 
letter  is  artfully  pennefl,  there  can  remain  no 
doubt  in  every  common  reader  at  a  coffee- 
house but  this  is  a  defamatory  hbel. 

It  is  plain  therefore  who  is  meant ;  and  as  a 
jury,  if  this  fact  was  before  them,  could  mlike 
no  doubt,. so,  as  I  am  a  judge  of  facts  as  well  as 
law,  I  can  make  none. 

1  ini;u[ht  mention  several  strong  cases,  where 
frvcn  teigncd  names  have  been  construed  a 
)ibel  u|K>n  those  persons  who  were  really  meant 
to  be  hbcUed. 

Upou  the  whole,  as  to  the  libellous  part,  if  so 
far  there  sliould  remain  any  doubt  whether 
the  evccutqr^  are  meant,  it  i^  clear  beyond  all 
contradiction  upon  the  last  paragraph,  ui  which 
lire  these  words  :  **  This  case  ought  to  be  a 
**  warning  to  all  fathers  to  take  C4ire  with 
^'  whom  they  trust  their  children  and  tlieir  for- 
f  *  tuncis,  lest  their  own  characters,  their  widows 
f  *  and  their  children  be  aspersed,  and  their  for- 
♦*  tunes  Kipinudered.  away  in  law-siuts.^' 

And  HkcHise,  though  not  in  so  strong  a  de- 
cree, tlie  words  "  tum«l  affidavit -men,"  is  a 
liliel  against  those  gt^ntlemen  who  have  made 
them. 

There  are  three  different  sorts  uf  contempt : 
One  kiml  of  contempt  is,  scandalizing  the 
jPouititeelf. 

^  Vide  liaker  v.  Hart,  post.  488,  Mr«.  Far- 
4^'8  gwe,  «  Vcs,  ^20, 


There  may  be  likewise  a  €X)nten 
Court,  in  abusing  parties  who  are  co 
causes  here. 

There  may  also  be  a  contempt  of  1 
in  prejudicing  mankind  against  pen 
the  cause  is  heard. 

There  cannot  be  any  thing  of  grea 
quence  than  to  keep  die  streams 
clear  and  pure,  that  parties  may  pn 
safety  botti  to  tiiemselves  and  their  < 

The  case  .  of  Raikes,  the  print 
Gloucester  Journal,  who  pidilistied 
one  of  the  Journals  against  the  com 
of  Charit^le  Uses  at  Burford,  callinc; 
tisement,  A  Hue  and  Cry  afler  a  C 
of  Charitable  Uses,  was  of  the  sau 
this,  and  the  Court  in  that  case  comn 

There  are  several  other  cases  of  * 
one  strong  instance,  where  there  w 
reflecting  upon  the  court,  in  the  ca: 
tain  Perry,  who  printed  his  brief 
cause  caine  on  ;  uie  offence  did  not 
the  printing,  for  any  man  may  give 
brief  as  weil  as  a  written  one  to  coi 
the  contempt  of  this  Court  was  preji 
world  with  n^^ard  to  the  merits  of 
before  it  was  beard. 

Upon  die  whole,  diere  is  no  dou 
is  a  contempt  of  the  Court. 

With  regard  to  Mrs.  Read,  the  p 
Saint  James's  Evening  Post,  by  wii 
viation,  it  is  said,  that  she  did  nol 
nature  of  the  paper;  and  that  print 
and  pamiihlcts  is  a  trade,  andwh) 
her  livelihood  by. 

But  diough  it  is  true  it  is  a  trad< 
must  take  care  to  do  it  with  prudence 
don ;  for  if  they  print  any  thin^  tli 
luus,  it  is  no  excuse  to  say  that  the  | 
no  knoA^  ledge  of  the  contents,  and  w 
ignorant  of  its  lieing  Ubellous :  anr 
rule  of  law,  and  1  will  always  adhi 
strict  rules  of  law  in  these  cases. 

Therefore  Mrs.  Read  must  be  coi 
the  Fleet  according  to  the  comuio: 
the  court  upon  contempts. 

But  as  to  Mr.  Hujvgonson,  who  it 
prisoner  in  the  Fleet,  I  do  not  think 
motive  for  compassion ;  because  the 
generally  take  the  advantage  of  t 
prisoners,  to  print  any  libellous  or  d 
matter  which  is  brought  to  then 
scruple  or  hesitation. 

U  these  printers  had  disclosed  di 
the  person  who  brought  this  papc 
there  miu^ht  have  l)een  something  sa 
gadon  ot  their  offence ;  but  as  they 
per  i<f  conceal  it,  I  must  order  Mi*s.  1 
committed  to  the  Fleet,  and  Huggoi 
taken  into  close  custody  of  die  ward 
Fleet. 

13th  Vesey,  jun.  page  237. — Lord 
Lord  Chancellor.  Dec.  20,  2i 
E^qiarte  Jones. 

The  object  of  this  petition  was  to  r 
Commitlee  of  a  lufliftqcy  and  (0  biiiig 


«]        STATE  TRIALS,  52  ChabLBS  II.  l6ffO.—PrMhge  of  Parliament.        [  j« 


LonI  CbumUor  an  alleged  contennpt  by  tlip 
ODDmiltM  aud  bi*  wife  and  other  personi,  bh 
tha  atnbora  pnoten  and  publLKlien  of  a 
fiBphlct,  nitb  an  addresi  to  (he  Ixint  Chan~ 
ailof  by  way  of  dediration,  rcfleclii>i»n|wn  the 
oadiKt  of  tbe  petitioner  and  other  arfiiig'  in 
Ae  sunagenient  of  the  afbirs  of  the  hinalip 
■deronkn  made  in  piirenanre  of  the  Iruxls 
tf  a  aOI,  tbe  affidavit  ivprciiciitiiif;  the  conduct 
rfthr  mmmrttee  and  his  wife  iotnujin;;  into  the- 
HMr'i  office,  and  intemiptiiig  liini,  not  only 
ialhebniiiKSi  of  thU  particular  lunacy,  but  nlh 
aim  haqness.  The  wife  of  the  timiniitlee 
UMndhrneH'to  be  the  author  of  the  uamphlel. 
(Dm;  the  innocence  of  her  hiisbanil. 

IV  SoUcitor- General  (Sir  Namucl  Romilly) 
■rf  Hr.  Hart,  in  support  of  the  petition,  weii 
Apfrd  by  the  Lord  Chancdlor,  who  called  on 
da  (oonad  i^;aiii«t  it. 

Mr.  Plowden  resisted  the  petitinn,  contend- 
■ctbtlthe  petitioners  had  a  remedy  at  law. 

liad£nJtiiif:  fThe  Lord  Cliancetlur.)  Ab 
kiMiedy  at  law,  the  aubject  of  this  applica- 
IM  ii  not  the  libel  a^auiot  the  petitioner. — 
Tkiawof  Ronch  v.Gan'an['jAlk.4C9]  »nd  ano- 
thr,  there  mentioned,  were  cases  ol'constructirc 
tMEapt,  denendtDg;  upon  the  inft-r^nrc  of  an 
tdntion  to  olmlruct  the  course  of  justice.  In 
AJinSancr,  that  ianotletlto  conjecture;  and 
■hlim  may  be  said  as  to  a  connruutive  con- 
tain thtnngn  tite  medium  of  a  libel  againKt 
poHM  engaf^  in  controversy  in  the  court,  it 
■•tr  has  beni  nor  can  be  denied,  that  a  publi- 
atfke  not  only  with  an  obvious  tendency  but 
vitti  tbe  desig'n  to  obstmct  the  ordinary  course 
rf  juttee,  ia  a  very  higli  contempt. — Lord 
BmM^  rmaidered  petwuis  concmied  in 
iWrWimai  of  the  court  aa  beiiw  underthe 
fttteim  of  the  court,  and  dM  to  be  drirai  to 
Mkv  maEes  against  libda  upon  them  in 
tm  nftcL — But  without  considering  whether 
lb  ii  or  IB  not  a  libd  tipaa  thb  (letilkmer,  what 
ORHcan  be  alleffcdtbr  the  whole  leoorof 
im  bak,  asil  introduced  by  thii  dedsration  of 
fteporaoxe  which  the  author  bte|>ded  it  to  an- 
Mv?  limiKlit  besuffidenttonvof  tbebook 
Mt,  Gripped  of  the  dedicatian,4iiat  it  could 
bpaUiahed  with  no  other  intcniion  than  to 
teroct  the  duties  cast  upon  the  petitioner,  and 


Dee,  la  tlus  dedica&n  tbe  olject  is  avowed, 
J  iAaaag  tbe  proceeding  of  the  court 
maHaff  upon  its  nue*  and  mileia,  and  inte- 
^^uf  the  puWc,  prejitdtced  in  fovnur  of  the 
■hir  by  her  «wb  partial  rvjircscntatitni,  to 
Menc  ■  diffkrent  tpecies  of  jnd^cnt  from 
tewtuch  votdd  be  ftdnuMstered  in  the  ordi- 
Wjeonrse,  and  by  flattering  the  judge,  to 
■a  the  source  of  justice. — This  pamphlet  bii: 

Is  to  the  printer*,  lord  Hanlwickc  obscrres. 
IliiQaexcnaelhntthe  printer  was  ienonuit  of 
tbt  omtenti.  Their  intention  may  Tiave  been 
^Mmt ;  but,  a«  lord  Manstield  hod  said,  the 
kawkencttlieiUegri  inoti**  ia  iiterad  muit 


be  traversed,  and  tlic  party  adfliittinf;  the  Ml 
cannot  deny  the  niotjie.— Thp  maxim,  '  Artua 

made  npplii-dbfe  to  lliiu  xubje^H  in  the  ordinary 
ailministr.itions  of  justice,  as  tbe  cffen  woufd 
be  that  the  ends  nfjustice  would  be  dcfuatcd  try 
contrivance. — Itiit  upon  the  satis^ctoiy  ac- 
count ifivcn  by  three  of  these  printers,  tlHiuifh 
undoublcilly  under  a  criminal  pnireeding,  tiiey 
would  be  111  mercy  in  a  casu  of  ciinK-mjrf. 
Tlinu!{'li  I  have  tbe  juriijdiction,  1  shnll  notnsu 
it. — 'Ilie  oilier  printer  appears  upon  the  affida- 
vits under  illHerem  circnmslnni.'es.  Having 
maile  the  obxcrvalion,  (lint  this  pam|ildi>l  ought 
not  to  be  |iriiitc(l,  being  intnUy  uniniercxtinff  to 
the  uublic,  ret  lie  does  print  it ;  and  thbugli 
the  liicui  pciiiCeritiit  was  aUbnted  to  him,  attii 
he  was  called  u|ion  not  to  print  any  more, 
he  proceeded  until  be  hod  noticv  of  this  pe- 

Lel  (lie  Commiltec,  and  Uis  wil%,  and  tha 
printer  to  whom  1  have  last  oUudnl,  be  cum- 
tiiitted  to  (he  Fleet  Prison.  Oisiuiwtbe  Coni- 
miltce  from  that  office  ;  and  direct  a  reference 
to  the  master,  as  to  tbe  appuiutnient  of  another 
Coiumiltec. 

Extracts  from  Sir  Eanlley  Wi)niot*t)  Opinions  * 
and  Judgments  ;  p.  353. 
Hilary  Term,  5  Geo.  3.  V65. 
Tlie  KciO  n.  Almoh. 
"  It  ha.s  been  argued  that  the  mnde  of  pro' 
cecding  hy  attachment  It  uii  invasion  ujinn  the. 
ancient  simplicity  of  the  law  ;  that  it  took  its. 
rise  from  the  statute  of  tVestuiiusler,  eh.  3  ; 
and  Gilbert's  Histoh'  of  the  Practice  of  the 
Court  of  Common  Pleas,  p.  30,  in  the  first  edi- 
liun,  is  cited  to  nmre  that  position.  And  it  h 
said,  that  act  only  ai>plics  to  ixriont  rcsLsting 
process  ;  and  tliou^  this  mode  of  proceeding 
IS  very  proper  to  remove  obslructioiis  to  tha 
execution  of  process,  or  to  any  contumelious 
treatment  of  it,  or  to  any  contempt  to  the  au- 
thority of  the  court,  yet  that  pn])er9  retlccling' 
merely  uiKin  the  quajitits  of  jnilgiw  Uipm selves, 
are  rot  tne  proper  objects  of  an  attairhnient ; 
that  judges  have  proper  rcmiilies  In  recover  ft 
BBtislaction  fur  such  reflections,  hy  actions  of 
"Scandalum  A1a(,'Datum;"  nnd  that  in  th* 
case  of  a  pear,  the  House  of  Lords  maybe  ap-> 
plied  to  fur  a  breech  of  privilege :  That  snch 
libellers  may  be  bruught  to  puiilshnient  by  in- 


*  Tliis  opinion  was  nut  delivered  in  court^ 
tbe  prosecution  having  been  dropped  in  conse* 
■luence,  it  is  sup|>o«i,'<l,  of  the  resignation  of  the 
tlicn  Ailomcy  Ucnerjl ;  but  atler  the  death  of 
tliiv  eminent  and  very  learned  Chief  Juntice, 
was  fdund  in  his  own  band-tvriting  among  hia 
papers  by  his  son,  nho  published  it  in  Memon-fl 
of  lii»  Life,  p.  S43.  The  occasion  of  it  was  a 
motion  in  the  Cuurt  of  King's- Bench,  Ibr  an 
attachment  against  3Ir.  Ahnun,  for  a  contenpt 
in  publishing  «  libel  i^^  tha  Court,  and  ui>on 
ttw  Cbiaf  Jiutieft. 


55]  STATE  TRIALS,  S^  Charles  II.  1  GhO.'^Praceedimgt  ag^mti  ItThmpi 


dietment  or  infovmation,*  that  there  are  bat 
few  instaDcen  of  this  sort  upon  libds  on  courts 
or  judges ;  thai  tlie  Common  Pleas  lately  re- 
fused to  do  h ;  that  libels  of  this  kind  nave 
been  pmseouted  by  actions  and  indictment; 
and  that  attachments  ought  not  to  be  extended 
to  libels  of  this  nature,  oecause  judges  would 
be  determininif  in  their  own  cause ;  and  that  it 
is  more  proper  for  a  jury  to  determine  quo  animo 
such  libels  were  published. 

'*  As  to  the  cnrijpn  of  attachments,  I  think 
tiiey  did  not  take  their  rise  from  the  statute  of 
Westminster,  ch.  9  ;  the  passacife  out  of  Gil- 
bert docs  not  proKe  it ;  but  ne  ordy  says,  '<  the 
^  oriffin  of  commitments  for  contempt, '  seems  * 
*'  to  oe  derived  from  this  statute  ;'*  but  read 
the  paragraph  through,  the  end  contradicts  tlie 

*  seeming  *  mention^  in  the  beciniiing  of  it ; 
and  shews,  that  it  was  a  part  of  Uie  law  of  the 
land  to  commit  for  contemjvt,  confirmed  by  this 
statute.!    And  indeed  when  that  act  of  l^rlia- 

*  Thus  Mich.  8  Elix.  Rot.  1,  Walsh  wosiu- 
Aoted  for  scandalising  one  sir  Robert  Catling, 
and  the  Court  of  Queen*s-Bencli,  by  saying, 
**  My  Lord  Chief  Justice  is  incensed  agaiimt 
me  ;  I  cannot  have  justice,  nor  can  I  be  heanl, 
fi>r  it  is  made  a  court  of  conscience."  See  the 
Attorney  (leneraPs  Argument  in  the  Case  of 
the  City  of  London,  Quo  IVurrauto^  a.  B.  1683, 
infra, 

t  On  this  subjoct  the  following  passage  taken 
from  Mr.  £vans*s  letter  to  sir  Samuel  Uowilly 
is  deserving  attention : 

*'  As  a  great  deal  has  been  urged  in  favour 
of  the  privilege  of  the  Commons  to  imprison 
for  a  Libel,  by  way  of  analogy  to  the  practice 
of  Courts  of  Justice,  which,  it  is  said,  may 
commit  for  contempti,  I  shall  beg  leave  to  ac(d 
a  few  words  on  that  part  of  the  subject.  liord 
Chief  Baron    Gilbert  h^s  stated,  that,    *  .It  is 

*  one  part  of  the  law  of  the  land  to  commit  for 
'  contempts,  and  confirmed  by  the  stat.We8tm. 
«  9,  c.  39."  (Hist,  of  Com.  Pkais,  p.  25). 
Now,  I  must  declare,  that  after  lookmg  into 
that  statute,  I  camiot  find  any  thing  to  war- 
rant his  assertion.  AH  that  the  statute  says,  is, 
that  many  great  men  (who  in  those  da^s  had 
oistles,  ftwtresiies,  and  lilierties,  wherein  tliey 
used  to  secure  themselves)  had  resisted  the 
Shorifi'  in  executir^  }he  Kings's  writs  ;  which, 
<7eating  great  inconvenience,  tlie  Sheriflf  b 
ordered  to  remove  all  obstructions  to  the  execu- 
tion of  the  pnicess.  The  act,  therefore,  only 
applies  to  pc>rsons  resisting  the  King's  writs, 
and  docs  not  say  a  ivord  aliout  any  other  con- 
tempt.- 1  must  confess,  that  I  cannot  nixlcr- 
«tand  how  Courts  of  Justice  can  imprison- for 
a  MMf  without  infringing  upon  Magna  Charta. 
All  tliat  they  csn  do,  in  a  constitutional  man- 
oer,  is,  in  my  opinion,  to  imprison  such  per- 
anhs  aft  commit  contempts  in  fticie  curie ;  or, 
m  o^er  words,  who  occasion  an  immediate  ob- 
itruction  to  the  administration  of  justice,  nnd^ 
as  audi,  are  disturber^  -'oT^  the  peace.  But, 
eran  in  dioae  cases,  Lfijllstiie  that  the  Courts 

"iBDOi  fwmstitiitinnilJr^  Iwiffriiinii  durinff  thair 


ment  is  read,  it  is  iropoasible  to  draw 
mencement  of  such  a  proceeding  out 
empowers  the  sheriff  to  imprison  pt 
sistmg  process,  but  has  no  more  to 

pleasure,  but  that  the  offender  must  a 
be  brought  in,  to  answer  by  due  proce 
and  receive  sentence  of  punLshmenl 
jury.  For,  tliough  the  stat.  Westm. 
declares.  That  such  person  as  shall  be 
of  resisting  tlie  Shenff,  shall  be  pui 
the  kind's  pleasure,  yet  my  lord  Co 
exposition  of  these  wwds,  says,  *  Tli 

*  cording  to  that  which  shall  be,  upon 
'  ceeding,  acyudged  coram  regt  in  th' 
'  Court  of  Justice ;  for  no  man  can  hi 

*  ed  by  absolute  power,  but  ttecundum 

*  eontueludinem  Anglur,  as  hatli  beei 
<  fore,  in  the  exposition  of  Magna  Cb 
'  elsewhere  hath  been  often  said.* 
^4.)  Ifa  Judge  could  imprison  fo 
he  must  necessarily  become  what  our  i 
warrants,  that  is,  a  Judge  in  his  ow 
and  if  he  could  imprison  during  his 
he  would  be  possessed  of  an  absolni 
which  our  constitution  does  not  alio 
fact  is,  that  great  and  good  men  lia 
times,  been  very  tender  of  the  lil)er 
subject.  Chief  Baron  Gilbert  sa; 
'  When  the  Common  Pleas  proceeded* 

sum  frcgit,  the  defendant  was  under 
disadvantages  as  when  he  was  an 
a  Latitat."  Upon  which  the  annots 
was  well  acquainted  with  the  laws  ar 
tution  of  his  countrv,)  observes — *  I 
Chief  Baron  caiididdy  aUoi^-s,  tliat  tl 
by  Clausum  fregit  in  the  Common  F 
by  the  Latitat  in  the  King's  Bench, 
the  defendant  under  disadvantages. 
Chief  Baron  had  said,  *•  under  unwa 

*  oppressions  in  open  violation  of  Kin 

*  Great  Charter,  not  only  by  subvei 
'  perverting  the  ancient  process  of  t 
<  trespass,  out  also  by  an  ai'bitrarv 

*  barons  abuse  of  special  bail :  If^  1 

*  Baron  had  stiguiatiseed  this  process  I 
'  with  the  seemingly  harah,  but  riclil; 

*  tenns  aliovc  mentioned,  as  sir ' 
'  Bridgeman,  Chief  Justice  of  the  < 

*  Fleas  did,  when  the  Latitat  was  fi 
'  duced  into  the  King's  Bench,  he  w< 
'  haps  have  done  no  more  than  an  hone 
'  nation,  at  the  innovation,  would  n 

(Hist,  of  Com.  Pleas,  3d.  ed.  p.  183.] 
discretion,  I  am  for  investing  the  JuiJ 
as  little  as  possible.  We  know,  th 
men  view  matters  m  a  different  li|j 
tluit  in  which  they  are  seen  by  otliers 

*  discretion  of  the  Judge,'  (says  Mi 
very  truly)  <  is  the  first  engine  of  t 
*'  the  hiws  of  a  free  people  dioukl  fbi 
'  determine  every  (|uestion  that  may 
'  arise  in  the  exercise  of  power  and  t] 

*  actions  of  industrr.'.  (Uediue  aad! 

r.  a-p.  1U.)" 
To  this  I  will   add  tile  memoraU 

Mid  fagr  kidCaiiMiMi  ia 


17]        STATE  TRIALS,  32  Charles  II.  iGSO^^Pritikge  of  ParliamenL        [58 


riiin(^  cooTLs  of  justice  a  power  to  vinclicate 
Hkv  uwh  ditfnitVt  than  any  other  chapter  in 
ibiartof  nriainenL 
** The  power  which  the  courts  in  We8t- 
Hall  have  of  vindicating  their  own  au- 
^ ,  ii  coeval  with  their  finit  foundation  and 
kioD  ;  it  is  a  necessary  incident  to  every 
of  iaslice,  whether  ot  record  or  not,  to 
iad  nnprison  for  a  contempt  to  the  court, 
the  face  of  it,  1  Vent.  1,  and  the  issuing* 
4  tftochinenLs  by  the  supreme  courts  of  jiis- 
ia  H  estniinst'er  Hail,  for  contempts  out  of 
upon  tlie  same  iinmemonHl  usage 


aftMMOits  the  whole  fabric  of  the  common 
kw ;  a  is  as  much  the  **  Lex  Teme,"  and 
axUs  the  exce^itiun  of  Magna  Charta,  as  the 
any  oth^  lt*gal  process  whatever.* 


rfHindson  aiid  Kersey,  in  the  Court  of 
C— wo  Pious,  when*hc  was  Chief  Jus- 
tt»  f4  that  CouTi  ;  *•  Tlie  discretion  of 
'  ft  Jiidl^e  is  the  law  of  t^Tants  :  It    is    al- 

*  «w%  loknown  :  It    is   different  in  different 

*  OKfl :  It  Y^  casual,  aud  dcjiends  upon  constitu- 
'  riua«  ftiuptT,  passion. — In  the  btst  it  is  ofb^n- 
*tmit%  raprioe  :  In  the  worst  it  is  ciery  vice, 
*fidk.  ndpasaionf  to  which  human  nature  is 

Jfr.  Bmie  in  his  *•  Thoughts  on  tlie  present 
SToea  so  far  as  to  assert  that  **  All 
3  of  an  uncontrouled  discretionary 
kilinii.  to  aggrandizement  and  profit  of 
ibdr  •«■  body  have  a]wa3'8  abused  it." 

*  Lwd  Cilice,  commenting  upon  the  words, 
^  Uy  Teine,"  in  Magna  Cliarta,  says : 

*'  Aspinst  this  antient  and  fundamental  law, 

wt inihe &ce  thereof,  I  find  an  act (4*  parlia- 

HMtU  H.  7,  c.  S.]  made,  that  as  well  jus- 

liBeifl  Mat*  as  justices  of  peace  (without 

MT  Miof  or  presentment  by  the  vei-dict  of 

Mit  am)  upon  a  bare  information  for  the 

Asf  kibre   them  mafle,  should    have   full 

IMw  sad  authority  by  their  discretions  to 

■vaad  dctennine  all  onences,  and  contempts 

or  done  by  any  person,  or  ]iersons 

the  form,  ordinance,  and  effect  of*  any 

nadc,  and  not  reuealed,  ^cc.    By  colour 

act,  shaking  tiiis  fundamental  law,  it 

■  am  rrtilible  what  horrible  oppressions  and 

iMdisBa,  to  the  undoing  of  infinite  numliers 

if  pea^,   were  committed  by  sir  KiclianI 

knight,  and  Edmund  Dudley,  being 

of  peace,  throughout  England;    and 

this  unjust  and  injurious  act  (as  common- 

If  ia  like  cases  it  lalleth  out)  a  new  ofiicc  was 

and  they  made  masters  of  the  king*s 


:  at  the  Parliament,  holden  in  the  first 

H.  8,  this  act  of  11  H.  7,  is  recited, 

void,  and  icpeuled,  and  the  reason 

Tielded,  fur  that  by  fon*c  of  the  saiil 

ftvna'maaifestl}'  known,  that  many  sinis- 

.  aad  crafty^  feigned,  and  forged  informa- 

^  kid  been  pursued  against  mvers  of  the 

^  aabyecta,  to  their  great  damage  and 

vM  vexation :  and.tM  Ul  Buocess  hereof, 

wfaaU Mdi  vf  th«ife  two  oppreMQfs, 

9 


"  I  have  examined  very  carefully  to  see  if 
I  could  find  out  any  vestiges  or  traces  of  its  in- 
troduction, but  can  find  none ;  it  is  as  ancient 
as  any  other  part  of  tlie  Common  Law;  there 

should  deter  others  from  committing  the  like, 
and  should  admonish  Parliaments,  that  instead 
of  this  ordinary  and  precious  trial,  per  legem 
Ui  rtf',  they  bring  not  ui  absolute,  and  partial 
trials  by  discretion."   3  Inst.  61. 

In  commenting  on  the  Statute  of  Marlebridge, 
62  H.  3,  lord  Coke  says : 

^*  The  preamble  shews  the  mischiefs,  which 
were  four. 

"  1.  That  in  the  time  of  the  kite  troubles, 
great  men  and  others  refused  to  be  justified  by 
tli(!  kin^  and  his  court,. as  they  ought,  for  here 
it  is  said,  *  multi  magnates  et  aLi  indignati 
'  fuerint  reciperc  justitiam  per  dominum  regem, 

*  et  curiam  suaia.' 

*'  2.  '  8ed  graves  ultiones  fecerint,'  That 
they  (refusing  the  course  of  the  king's  laws) 
took  upon  them  to  be  t|ieir  own  judges  in  their 
own  causes,  and  to  take  such  revenges  as  they 
thought  fit,  until  they  had  ransoms  at  their 
pleasures.  *  Aliquis  non  debet  c«sc  judex  in 
*'  sua  propria  causa.' 

*^  3.  I'hat  some  of  them  would  not  be  justi- 
fied by  the  king's  offi(x;rs." 

''Ihe  IxKlyof  the  act  consisteth  of  divera 
brant^hes. 

*'  First,  a  remedy  in  general  for  all  the  said 
mischielk. 

'*  (1).  *  Provisum  est,  concordat um,  et  con- 
*•  cessum,  qiuid  tain  majores  nuam  minores* 

*  justitiam  habcant  et  recipiant  in  curia  domini 
^  regis.']  This  is  the  golden  metewand,  that 
the  law  hath  appoint»l  to  measure  the  cases  of 
all  and  siiigidar  persons,  high  and  low,  to  hav» 
and  rec-eive  justice*  in  the  king's  courts ;  for 
the  king  liath  distributed  his  judicial  |Kiwer  to 
several  courts  of  justice,  and  cfMirts  of  justice 
ought  to  determine  all  causes,  and  that  all  pri- 
vate revenges  be  avoidt*fl. 

^*  Upon  this  gcuei-al  law,  four  conclusions  do 
follow. 

*M.  That  all  men,  high  and  low,  must  be 
justified,  that  is,  have  and  receive  justice  in  tho 
king's  courts  of  justice. 

''  *i.  That  no  private  n'venge  l>e  taken,  nor 
any  man  b}'  his  uwn  arm  or  |>ower  revenge 
himself:  and  this  aiticle  is  gr<Mmded  U[M)n  tlifr 
law  of  God,  «  viiidic*ta  est  inilii  et  ego  retri- 
^  buam,'  saitli  Alnu:j>hty  God.  All  revenge 
must  come  from  G(mI,  or  from  hLs  lieutenant 
the  king,  in  some  of  his  courts  of  justice. 

*^  3.  That  all  the  subjects  of  the  realm  ought 
to  be  justilie<l,  tlmt  is,  submit  themselves  to  the 
king's  officf-i-s  of  justice  according  to  law." 

See  also  Mr.  Helden's  Argument  for  sir  Ed - 
nmnd  Hampden,  anie^  vol.  3,  p.  16,  et  ieq* 
See,  too,  pi).  7(),  ]2a,  16^,  16.S,  164,  and  the 
4tli  and  6tn  clauses  of  the  Petition  of  Kight, 
pp.  292,  2'^S,  of  the  same  vohime ;  and  a  pa»> 
sage  firoiii  Uogcr  North,  inserted  in  a  Note  tw 
the  CaM  of  1:  iteharris,  a.  o*  1(^  i,  in/ra. 


B9]  STATE  TRIALS,  S^Cnknms  II. l6so,^Praceeiingiagmiui  ILTkcmpi 


it  no  priority  or  |K)steriority  to  be  discoTered 
■about  it,  and  therefore  cannot  be  said  to  in?ade 
the  common  law,  but  to  act  in  alliance  and 
triendly  conjunction  with  every  otlier  provision 
which  the  wisdom  of  our  ani'estors  has  estab- 
lished for  tlie  general  {^tood  of  soc'iety.  And 
thou^  I  do  not  mean  to  compare  and  contrast 
attachments  with  trials  by  jury,  vet  truth  com- 
pels me  to  say,  that  tlic  mode  in  proceeding  by 
attachment  stands  upon  the  very  same  foimda- 
tion  and  basis  as  trials  by  jury  (to,  immemorial 
nsa^c  and  practice  ;  it  is  a'  constitutional  re- 
medy in  |>artioular  cases ;  and  the  jud^ifes  in 
those  cases  are  as  much  bound  to  give  an 
activity  to  this  part  of  the  law,  as  to  any  other 
part  of  it.  Indeed  it  is  admitted,  that  attach- 
ments are  Tcry  properly  granted  for  resistance 
of  process,  or  a  contumelious  treatment  of  it, 
or  any  violence  or  abuse  of  the  ministers  or 
others  employed  to  execute  it.  But  it  is  said 
that  the  courts  of  justice  in  those  cases  is  oh- 
■tructcd,  and  the  obstruction  must  be  instantly 
removed ;  that  there  is  no  such  necessity  in  the 
case  of  libels  upon  courts  or  judges,*  which 
may  wait  for  the  ordinary  miethod  of  presecu- 
tion,  without  any  inconvenience  whatsoever. 
But  where  the  nature  of  the  offence  of  libel- 
ling .judges  for  what  they  do  in  their  judicial 
capacities,  either  in  court  or  out  of  court,  comes 
to  be  considered,  it  dot^,  in  my  opinion,  be- 
come more  proper  ibr  an  attachment  than  any 
ether  case  whatsoever. 

*'  By  our  constitution,  the  king  is  the  Rmn- 
tain  of  every  specit^  of  justice  whidi  is  ad- 
ministered in  this  kinsfdom,  19  CV).  5t5.  The 
kiopis  '  de  jure'  to  distribute  justicre  to  nli  his 
•ubfects;  and  because  he  cannot  do  it  himself 
to  all  persons,  he  delegates  his  power  to  his 
judges,  who  have  the  custody  and  guanl  of  the 
king's  oath,  and  sit  in  the  scat  of  the  king 
*  concerning  his  justice.' 

**  The  arraignment  of  the  justice  of  the 
judges  is  arraigning  the  king's  justice ;  it  is  an 
impeachment  of  his  wisdom  and  goodness  in 
the  choice  of  his  judges,  and  excites  in  the 
mind  of  the  people  a  general  dissatisfaction 
fvith  all  judicial  atiterminations,  and  indisposes 
their  minds  to  ol»ey  tliAii ;  and  whenever  mens 
allegiance  to  the  laws  is  so  fundamentally 
shaken,  it  is  the  most  fatal  and  tlie  most  dan- 
gerous obstruction  of  justice,  and,  in  my  Ofu- 
nion,  calls  out  for  a  more  rapiil  and  immediate 
ledress  than  any  other  obstruction  whatsoever ; 
not  for  the  sake  of  the  judges,  as  private  indi- 
▼iduids,  but  because  they  are  the  channels  by 
which  the  king's  justice  is  conveyed  to  the 
people.  To  be  impartial,  and  to  be  universally 
thought  so,  arc  both  absolutely  necessary  for 
the  giving  justice  that  free,  ujien  andf  un- 
intemipted  current,  which  it  has  for  many 
ages  round  all  over  this  kin^lom,  and  which  so 
eminently  distinguislies  and  exalts  it  above  all 
mttim*  upon  the  earth. 

**  In  the  moral  cstimatioa  of  the  offence,  and 
In  grery  public  consequence  arising  from  it, 
iriMt  an  infinite  disproportion  is  there  between 
gpnlriiy  iMMfitiimftlioua  words  of  the  rulee  <tf 


I  the  court,  for  which  attachments  arc 
constantly,  and  coolly  and  delibawlely 
the  most  vhiilent  and  malignant  sonndi 
fancy  could  suggest  upon  the  judge 
selves.  It  seems  to  be  material  to  fix  ( 
of  the  words  *'  autliority"  and  ^*  coni 
tlie  court,"  to  speak  with  precision  u 
question. 

''  Tlie  trial  by  jury  i»one  part  of  t' 
tem,  the  punishing  contempts  of  the  c 
attachments  is  another  :  we  must  not  c 
the  modes  of  proceeding,  and  try  cc 
by  juries,  and  murders  by  attacbmi 
must  give  that  energy  to  each  which  t 
stitutiun  prcjicribcs.  In  many  cases, 
not  see  the  correspondence  and  def 
which  one  part  of  the  system  has  ami 
another ;.  but  vre  must  \wy  that  defe 
the  wisd(nn  of  many  ages  as  to  pres 
And  I  arn  sure  it  wants  no  great  intuitio 
that  trials  by  juries  will  be  buried  in  t1 
gmvc  with  the  authority  of  the  courts 

to  iireside  over  them.  * ' 

i' 

Trinity  Tei-m,  8  Geo.  3. 

Writs  of  attachment  were  granted 
Staples  Stcare,  John  Williams,  and  Joh 
dm,  for  contompt,  in  publishing  the  Nc 
ton  Extraordinary,  No.  4,  containing 
atlilressed  to  lord'  Mansfield,  Lord  Cni 
tice,  containing  gross  reflections  on  his  1 

They  were  all  examined  upon  interru] 
and  reiiorted  in  contcm]it. 

And  Michas.  Term.  9  Geo.  3.  Ste 
sentenced  to  be  imprisoned  three  • 
months. 

\Endff  the  Reports  of  the  j 
Commons^  1810,  in  the  Cai 
Francis  Burdett.] 

Mr.  Wynn  in  his  learned  '  Argument' 
cdotlicr  authorities  in  support  ot  the  unc 
ed  power  of  the  House  of  Commons,  to  < 
There  are  also  thi«c  Reports  of  l^rece( 
nunishment  for  contempt  in  the  Jouma 
House  of  Lords,  viz. 

Dec.  19, 1699. 

Ordered,  That  tlie  committee  appoi 
inspect  the  Journals  of  this  House,  m 
to  tlie  punishing  of  persons,  whose  bi 
writings  have  been  censured  by  this  He 
scandalous  libels)  be  revived ;  to  mc 
sently.  Then  the  House  was  adjoiunei 
pleasure.    The  House  was  resumed. 

And  the  marquis  of  Normanby  report 
the  said  committee  the  precedents  foil 

March  Q3, 1623,  Thomas  Moriey. 

March  Ci2,  1623,  Waterhoase. 

July  9,1625,  llalph  Brooke. 

April  16,  16^8,  Anthony  Lamplugb. 

March  29,  16*2,  John  Bond. 

July  9,  1663,  Fitton. 

March  8,  1689,  Uowning. 

November  18,  1693,  PoUard. 

I>eccniber  18,  laar. 


n]         STATE  TRIALS,  32  Charges  II.  \6S0.^Prmlege  of  Parliament.        (St 


November  ?5, 1734. 

The  Imrd  Delawar  acquainted  the  House 
^^Tte  the  lords  committees  appointed  to 
Miidi  precedents,  as  to  what  punishments 
hue  been  inflicted,  or  methods  taken  to  vindi- 
rafe  tiie  honour  of  this  House,  in  cases  of  any 
kttA  of  tbeir  lordships  pri^ileg^,  or  con- 
tiiBpIs  to  this  House,  had  inspected  precedents 
anmo^y ;  and  had  prepared  a  Report  ; 
which  he  u-as  ready  to  mAe,  when  their  lord- 
ibips  will  please  to  receive  the  same/' 

OrAeiedt  That  the  said  Rep<»rt  be  now  re- 
onvcd. 

.locpidiogiy  liis  lordship  reported  from  the 
Ofd  cwwiKttee,  as  follow  »  : 

*^Tbat  the  committee  have  inspected  the 
Jounalsofthis  House,  in  relation  to  tlie  mat- 
icn  tn  them  referred  ;  and  think  proper  to 
flier  to  your  lordships  consideration  the  tullow- 
1^; ibMances ;  >iz. 

""Ffhruarv  27,  16W.  Richard  Re^-nolds 
aad  Rsbert  \Vright,  for  arresting  a  servant  to 
(he  eari  of  Oxford,  were  ordered  to  be  set  on 
hmehack,  near  Westminsler  Hall ;  neither  of 
than  to  have  cloak  or  bat ;  but  to  ha%'e  on 
their  hreasts  and  backs  papers,  expressing  tlieir 
M;  (viz.),  *  £For  a  contemptuous  breach  of 
'tbepmil^res  of  parliamt:nt,  activated  by 
'cmtemptoous  speeches  ;*]  and  so  to  p&ss  to 
the  Fleet,  wher^  they  are  to  be  left  prisoners. 
"  Nor.  37,  1621.  John  Blunt,  for  countcr- 
fieitiaf  the  lord  StrafTord^s  seal  to  a  protection, 
sasorderedto  stand  on  the  pillory,  at  West- 
niuter  and  in  Cheapside,  with  papers  on  his 
head  shewiiv  his  offence;  and  then  to  be 
wied  toBridewelU  and  there  to  remain  during 
hbUfe,  acd  tn  work  for  his  living. 

**Marth««,   1693.    TTIiomas  Morley,  for 

pohfafaiBg  a  printed  petition,  very  scamlalous 

a^inst  the  lord  keeper  in  particular,  and  by 

Mpenion  against  the    whole  court   of  8tar- 

f^fntber  in  ^;eneral,  and  at  the  bar  insolently 

^aag  many  msolent  words  of  the  lord-keeper, 

jb  pKKnce  of  their  lordships,  was  imprisoned 

a  the  Fleet,  fined  1,000/.  to  the  king;  set 

vitb  his  neck  in  the  pillory  in  Cheapside,  with 

tteof  the  {ictitions  on  his  head  ;  ordered  to 

uke  submissiony  and  acknow  ledgment  of  his 

ftuh,  at  the  bar  and  in  the  Star-chamber.    The 

■est  day  one  Waterhouse,  who  penned  the  finst 

taig^  of  Morley 's  petition,  wasaiijudged  to 

W  a  prisoner  in  the  Fleet,  and  debarred  |ion, 

■k,  and  paper»  durin)/  the   pleasure  of  the 

Hock  ;  fined  500/.  to  the  king ;  to  make  snb- 

■haon,  and  acknowledgment  ot*this  his  fault, 

ttthe  bar,  in  the  Star-chamber,  and  to  the  lord- 

kttper:  and  Bernard  Alsop,  the  printer  of  the 

fcidion,  imprisoned  in  the  Fleet,  admonished 

•otto  print  any  more  petitions  ;  and  to  make 

wbnussioh  and  acknowledgment. 

'*  May  28,  1C94.  Upon  a  report  from  the 
committee  of  privileges,  the  fine  on  Moriey 
*tt  reduced  to  500/.  and  he  was  diMrliargcd 
M  of  prison;  au«l  Waterhouse's  punislmt;;iil, 
iH>M  his  petition,  was  remitted. 
""July  9,    1695.    IU4ph   Bwke,   Yorke 


Herald,  for  exhibiting  a  false  and  scandalous 
petition  against  the  earl  Marshal,  was  sen- 
tenced to  make  his  submission  to  the  said  carl 
Marslial  at  the  bar,  to  be  imprisoned  in  the 
Tower  during  pleasure,  and  Hned  1,000  marks. 
*•  April  4,  1626.  George  Ganlner,  for  buy- 
ing and  selling  of  coimteHeited  protections 
under  the  hand  and  seal  of  a  peer  in  parlia- 
ment, was  ordered  to  be  set  on  the  pillory  at 
Wesitminster,  with  a  paper  on  his  head,  declar- 
ing his  otfence  ;  and  afterwards  to  be  carried 
down  to  Norwi4'h,  and  there  to  stand  on  the 
pillory,  with  the  like  paper. 

"  ISth  June  following,  The  same  Ganlner,  for 
scandalizing  the  justic^e  of  this  House,  and  for 
unjustly  slandering  the  lord  keeper,  was  or- 
dered to  stand  in  the  piUory  at  Westminster, 
wi:h  a  paper  on  his  head,  declaring  his  offence; 
and  to  ride  backward  with  the  siuue  na{)er  to 
the  cross  in  Cheaptiiide,  and  to  stanci  on  the 
pillory-  there,  and  so  to  ride  hack  to  the  Fleet : 
and  though  the  lord  keeper  did  earnestly  dcsiro 
this  puntshment  might  be  forgiven  Gardner, 
yet  the  House  deuied  it. 

'*  April  16,  16-28.  Anthony  liamplugh,  for 
exhibiting  an  unjust  and  scandalous  petition 
afpiinst  ttie  lord  keeiier  and  lord  bishop  of 
Lmcohi,  was  sentenced  to  stand  committed  to 
the  Fleet ;  to  a^jknowletlge  here,  at  tiic  bar, 
'  That  the  said  petition  is  unjust  and  scandalous, 
*  and  that  he  is  sorry  for  it ;'  and  to  ask  tlieir 
lordships  forgiveness  ;  and  to  be  brought  to  tlie 
chancery  bar,  and  there  to  make  the  like  ac- 
knowledgment. 

*'  l^lie  next  day,  he  having  asked  forgive- 
ness at  the  bar,  the  remainder  of  the  censure 
was  forgiven. 

*'June  12,  1678.  Kusign  Reynde,  for  ig- 
nominious speeches  uttere<l  by  him  against  the 
lord  discount  Hay  and  St*ale,  and  for  his  con- 
tempt of  this  high  court  of  I'ar'ianient,  was 
adjudged  ne^er  to  beai-  anus  hereatier,  but  ac- 
counted unworthy  to  t>e  a  soldier ;  to  be  impri- 
soned during  pleasure  ;  to  stand  under  the  pil- 
lory, mth  pa|)ers  on  his  head  shewing  his 'of- 
fence, at  Cheapside,  and  at  Banbury  ;  to  b6 
fined  at  200/.  to  tlie  king  ;  and  to  ask  lorgive- 


ness. 


'*  And  as  to  tlie  precedent  last  mentioned, 
the  committee  thuik  proper  to  observe  to  the 
House,  That  it  apjiears  ny  the  Journal,  that 
their  loixlships  utmost  eudc^avours  were  used^ 
to  apprehend  and  bring  the  said  Reynde  in 
pei-son.  More  them,  to  justice ;  but  h^  ab- 
Kcomletl,  so  that  he  could  not  be  taken ;  not- 
withstanding which,  the  House,  in  his  absence, 
proi'eided  to  the  censure  above-mentioned  ; 
and  directed  the  court  cd' Star-'Chamber,  to  put 
the  si>ntence  against  him  in  execution,  if  bfe 
should  happen  to  be  apprehended  after  th^ 
ending  of  the  session,  and  out  of  time  of  Par« 
lianient. 

'^  Jan.  13,  1640.  James  Faucet,  for  inao* 
lent  and  abusive  speeches  againit  the  earl  of 
Newport,  was  sentenced  to  stand  committed  to 
tlie  Fleet ;  to  make  his  humble  submission  to  the 
said  eari,  and  to  pay  him  SOOL  for  damages. 


fS]  STATE  TRIALSb  32  Chakles  II.  l6SO.—Pr§eadmgi  if «Mff  A.  TIUfl^MMi :  [( 


**  Much  29tfa,  1642,  pott  mgndim.    John  | 
Bond,  fbr  bein^  the  author  ind  contriver  of  a 
friae  and  Kandilous  k?ttcr,  precmdad  to  he  MOt 
from  the  queen  in  Holland  to  his  majesty  at  | 
York,  was  sentenced  to  stand  on  the  pillor^-  at  ' 
WeatnuDster  Hall  door,  and  in  Cheapiide,  with 
a  paper  on  his  head,  written,   '  A  Contriver  of 
*  Fake  and  Scandalous  Libels;'  the  said  letteni 
to  be  called  in,  and  burnt  near  him  as  he  stands ; 
and  he  to  be  committed  to  the  house  of  correc- 
tion. 

«'  April  S8,  1C42.  8ir  William  8an  Ravy, 
knight,  for  false,  scandalous  and  malicious  re- 
ports and  speeches  a^inst  the  carl  of  Danby, 
was  fined,  to  the  king,  in  the  sum  of  100/1 ; 
ordered  to  pay  the  said  earl,  by  way  of  damages, 
SlQOL  ;  to  make  a  submission  at  the  bar,  and  to 
he  imprisoned  in  the  Fleet. 

**  July  9,  1663.  Alexamler  Fitton,  for  con- 
triring  and  publishing  an  infamous  libel  agahist 
the  k!rd  Gerrard  of  Brandon,  fined  500/.  to  his 
maiesty,  committed  to  tlie  King's  Bench,  and 
to  find  sureties  for  his  iKjhaviour  during  life. 

''  December  18, 1667.  William  Carr,  for 
dispersing  scandalous  and  seditious  printed 
uapen  against  the  lord  Gemurd  of  Brandon, 
fined  1,000/.  to  the  king,  to  stand  thrice  in  the 
pillory,  to  be  imprisoned  in  the  Fleet,  and  the 
papers  to  be  burnt. 

"March  1,  1676.  Dr.  Gary  was  fineil 
1,000/.  for  refusing  to  discover  Kis  knoulefls^e 
of  a  libel ;  and  to  lie  committed  to  the  Tower 
tiU  lie  pays  the  same. 

«<  March  8,  1688-9.  William  Downing,  for 
nrinting  a  paper  reflecting  on  the  lonl  Grey  of 
fVarke,  was  committed  to  the  Gatehouse,  and 
fined  1,000/.  to  the  king. 

**  June  11,  1689.  Percy's  |>ctition,  claim- 
ing the  earldom  of  Northuinlierland,  containing 
several  reflections,  was  dismissed  the  House  ; 
and  the  said  Percy  was  ordered  to  be  brought 
before  the  four  courts  in  Westminster  Hall, 
wearing  a  |)aper  upon  his  breast,  in  which 
these  wonis  shall  be  written,    *■  The  False  and 

*  Impudent  Pretender  to  the  Earldom  of  Nor- 
'  thunilierland.' 

''April  11,  1690.  Thomas  Garston,  for 
counterfeiting  protections,  to  stand  twice:  iu  the 
pillory,  an<l  lie  committed  to  tlic  Gatehouse  till 
ke  |Ni\'8  his  fees. 

"  Feb.  23,  1695.  The  House  was  informed, 
That  there  was  a  iia|)er  dulivei-uil  at  the  door, 
reflecting  on  the  House,  by  llobert  Crosfielfl:" 
WhdkieuiNm  he  was  cidkMl  in,  and  owned  the 
paper  ;  but,  refusing  to  give  the  liouse  an  ac- 
count who  printed  it,  he  was  ordered  into  cus- 
tody. 

"  March  17,  1697.     A  liM,  intituled,  *  Mr. 

*  JWrtie^M  Casi^  ^<*-  ^th  some  Heniarks  on 
'  the  Judgment  given  therein,*  was  voted  false, 
inalicirnM  anil  scandaloiui,  and  onlered  to  be 
burnt ;  and  a  conuuiltee  was  ap|Niinted  to  con- 
«der  of  tlic  said  paper. 

^  March  18,  1697.  Report  was  made  from 
Iki  eonmiitteo.  That  the  printer  had  confessed 
dttl  Mr.  Robert  Uertk*,  a  member  of  the  House 
of  CSMMBOaa*  had  em|doycd  him  la  print  it. 


"  26th  of  the  same  month.  Coniridcnth 
was  had  of  the  said  paper ;  and  the  eari  < 
Abingdon,  in  his  plaoe,  declared,  That  he  dl 
in  t£e  name  of  his  son,  ask  pardon  of  tl 
House  and  the  Lord  Chancellor ;  whidi  tl 
House  accepted. 

"  May  7,  17 16.  James  Mynde,  a  aoBcilB 
was  ordered  into  custody,  tor  puttiiig  conntd 
names  to  an  appeal  witliout  their  koowledn. 

'*  19th  of  same  May,  Mynde  was  broo^i 
the  bar,  and,  by  a  petition,  confessed  hoM 
guiltA' ;  and  a  committee  was  appointed,  t»  ii 
spect  precedents  of  punishments  mflicted. 

**  18th  of  that  month,  report  was  made  fi« 
that  committee ;  and  M^iule  fined  lOU/.  to  tl 
king. 

"June  4,  1716.  He  petitions  to  be  di 
charged  out  of  custody  ;  and  his  petitkm  wi 
rejected. 

"  12th  of  the  tame  month.  He  was  ordoi 
to  cause  his  fine  to  be  paid  into  the  cU 
hands,  in  order  to  be  e<Area2d  into  the  E 
chequer,  for  the  regubr  payment  of  the  an 

"  1 4th  of  the  same  montti.  The  Henn  I 
ing  informed.  That  the  derk  had  receifed  i 
said  fine ;  Mynde  was  ordered  to  be  hnnuhl 
the  bar,  to  be' discharged  ;  and  the  nextwj! 
was  brought,  reprimanded,  and  discharged  i 
cordiiigly,  (paymg  his  fees)." 

March  3, 1764. 

The  earl  of  Marcfamont  reported  fron  1 
Lords'  committees  appointed  to  seareh  pni 
dents,  as  to  what  punishments  have  been  I 
dieted,  or  methods  taken  to  vindicate  the  1 
nourof  this  HoiiKe,  iu  cases  of  any  hreadi 
their  lordships'  privilege,  or  contempts  to  1 
House : 

'*  That  the  committee  have  taken  into  ooa 
deration  the  matter  to  them  referred,  and  hi 
inspected  the  Jonnials  in  relation  thereto;  I 
find  that  a  long  report  was  made  from  a  eoi 
mittee,  to  this  House,  the  95tli  of  Noremh 
1724,  of  precedents  of  puntshmcnts  inflicted, 
methods  taken  to  vindKate  the  honoiur  off  1 
HoiLse,-  in  canes  of  breaches  of  privilege  or  o 
tempts ;  which  report  being  entered  in  t 
Journal,  the  committee  think  it  unnece^aw]! 
do  more  tlian  to  reliT  thereto.  But  they  thi 
it  their  duty  to  offer  to  .the  consideration  of  I 
House  the  folloMing  instances,  which  hi 
occurred  since  the  making  of  tlie  said  repwl 

"  Feb.  4,  1724.  Matthias  Cater,  fat  ■ 
curing  and  selling  protections  of  the  em 
Huflbik,  and  for  an  unlawful  combinatioa 
chaige  certain  [lersous  falsely,  was  fined 
noUes,  onlered  to  be  cfimuuhed  to  Newg 
for  three  months,  niid  until  he  pay  the  i 
fine ;  and  to  be  put  tw  ice  in  the  piUory ,  (hr  1 
space  of  an  hour  each  time,  with  a  paper  o 
his  head,  signifying  his  offVnces. 

•'April  21,   1725.    Thomas  Tooke  an 
tomey,  for  a  breach  of  the  earl  of  Mtra(Rii 
inriviiege,  was  ordere<l  into  the  custody  of  i 
gentleman  usher  of  tlie  black  hnI. 

••  Feb.  22,  1795.  Upon  ^  repreaentil 
of  the  black  rod  agoinat  TW«  and  ethen,  i 


STATE  TRIALS^  32  Charles  II.  iffSO-^PHviligv  of  ParBdmint.       [66 


imo  eulody  for  breaches  of  pri- 
i  Ihej  were  all  ordered  again  into  cot- 

B.  tU  17S6,  July  4,  17127.  The  said 
i,  not  hariiq^  madle  hb  submission,  nor 
as  fees,  was  again  ordered  into  custody, 
by  SS,  1728.  The  yeoman  usher  and 
r  the  doorkeepers,  being  examined  oon- 
m  the  briHLTionr  of  the  said  Tooke  when 
^iBciHCody,  the  House  adjudged  that 
id  Tooke  should  pay  a  fine  of  600/.  to 
Mr,  for  breach  of  privilege  and  contempt 
tfisose :  And  the  sherittii  of  Loudon  and 
leKi  were  ordered  to  take  him,  and  keep 
a  Newgate  till  he  should  pay  the  said  fine, 
k/ccs  and  charges  to  the  usher  of  the  black 
wi  ether  otficers  of  this  House, 
cb.  19,  1754.  David  Home,  for  forging 
Hmg  protections  in  the  name  of  the  ean 
canUiaoe  and  earl  of  Crawfurd,  was  or- 
is be  committed  to  Newgate  for  one  year, 
» be  put  twice  in  the  pilk>ry  tor  the  space 
bbareach  time,  wim  a  paper  oyer  his 
i^pifying  his  offence. 
Immer  IG,  1756.  George  King,  for 
ai  1 1  ui  il  in  printing  and  publismng  a 
■i  md  forged  printMl  paper,  disponed 
stfdy  sold  aa  nis  majesty^s  speech  to 
Vaoses  of  PaHian^nt,  was  tined  50/.  and 
ibed  to  Newflfate  for  six  months,  and 
le  nay  the  said  fine : 
fra  1,  1757.  Upon  his  petition,  express- 
is  abhorrence  of  ni»  crime,  and  sorrow  for 
■c,  and  hombly  imploring  forgiveness 
■rey,  he  was  ordered  to  be  brought  to 


^^4,  1757.  He  was  brought  to  the 
■wnTingly  ;  where  he,  on  his  knees,  re- 
t$  a  ic^niand  fi?om  the  Speaker,  his 
wa  mutted  ;  and  he  was  ordered  to  be 
■qpdaot  of  Newgate,  paying  his  fees.^' 

mr  CONCERNING  PRIVILEGE. 

the  SOtfa  of  April,  1771,  a  Committee 
Bmmt  of  Commons  which  had  been  **  ap- 
d  la  examine  into  the  several  tacts  and 
relative  to  the  late  obstructions  to 
of  the  orders  of  the  House,''  made 
It  in  which,  after  having  stated  the  evi- 
•T  Ae  facts  and  circumstances  rdative  to 
ahatimtiiips,  they  stated  that  they  hail 
lied  10  Ae  other  part  of  what  was  given 
in  cbaige;  namdy,  *^  to  consider  what 
bar  proceeding  may  be  reqniHite  to  eu- 
•  ft  doe  obtdienee  to  tho  orders  of  tlie 
■i;**  and,  in  order  to  form  their  Judg- 
■|n  Ibat  matter,  thov  have  made  a  dili- 
bMick  in  the  Journals,  to  see  what  the 
Kpi  of  die  House  have  been  on  similar 
■k;  or,  if  no  cases  strictly  analogous 
■•scar,  mt  least  to  deduce,  troni  the  g^ 
of  the  House,  such  principles  of 
Ivy  law  as  might  be  ajiplicable  to 
it  natter  referred  to  their  consider- 


the  Committee  beg  leave  to 
teii'appeafs  to  them  that  thia  House 


has,  ih>m  the  earliest  times,  asserted  and  ei^er- 
cised  the  power  and  authority  of  summonhig' 
before  them  any  commoner,  and  of  compelling 
his  attendance; — and  that  this  power  and  au- 
thority has  ever  extended  as  wdi  to  the  city  of 
Loudon,  without  exertion  on  account  of 
charters  from  Ae  crown,  or  any  pretence  df 
separate  jurisdiction  (instances  of  which  appear 
in  the  cases  (l)referred  to  in  the  margin)  as  to 
every  other  part  of  the  realm. 

And  that  the  House  have  ever  considered 
every  branch  of  the  civil  authority  of  this  go- 
vernment as  bound  (when  require")  to  be  aidSng 
and  assisting  to  cairy  into  execution  the  war- 
rants and  o^ers  of  this  House. 

In  order  to  la^  before  the  House  the  residt 
of  their  enquiry  with  tolerable  brevity,  and  some 
degree  of  method,  the  Committee  have  rcdnced 
under  three  ^peneral  heads  the  obstnictions  which 
have  been  given  at  different  times  to  the  oitlers 
of  the  House,  and  under  each  of  these  heads 
have  ranged  the  different  modes  in  which  these 
breaches  of  privileges  and  contempts  have  been 
offered ;  and  then  submit  to  the  consideration 
of  the  House  the  several  metho<ls  of  |nt>ceeding 
which  the  House  hath  opposed  to  these  Offences, 
the  proofs  of  which  proceeding  appear  by  cases 
referred  to  in  the  margin  of  this  Report. 

The  three  general  Heads  of  breadi^  of  pri^ 
vilege  and  contempts  of  this  House  are,  namely, 
those  arising  from,  First,  Evasion.  Secondly, 
Force.    Thudly,  Cok>ur  of  Law. 

Offences  under  the  First  and  Hecond  of  these 
heads  have  been  committed — by  the  absconding 
of  theparties  summoned — by  open  resistance  to 
the  officers  of  the  House-^and  by  riots  and  tu- 
mults— by  the  refusal  of  civil  officers  to  assist 
the  Serjeants  or  messengers  of  this  House,  or  to 
release  persons  entitled  to  the  privilege  of  this 
House  when  detained  in  their  custody. 

1 1  appears  also  to  your  Committee,  as  well  firom 
searching  the  Journals  of  this  House,  as  firom 
«>ther  auuientic  evidence,  that,  in  order  to  re- 
medy the  abuses,  and  to  remove  the  obstructions 
above  recited,  this  House  has  proceeded  to'  sup- 
port their  privileges,  and  to  enforce  the  execu- 

(1)  Ferrers'  Case,  in  Crompton,  fo.  9  ^  10.— 
Stanman,  6E.  6.  1st  vol.  p.  18.— Boswell,  |S 
and  3  P.  and  M.  1555.— Nov.  30,  1st  vol.  p. 
44.— Corbet,  5  and  6  P.  and  M.  1557,  Nov.  10, 
1st  vol.  p.  51.— Six  Servants  of  Sir  H.  Jones, 
10  Feb.  l.-ibS,  Isl  vol.  p.  65.— Win.  Jones,  29 
Oct.  8  Eliz.  156<j,  1st  vol.  n.  75.— Sir  J.  Shiriey, 
March  22,  1608,  1st  vol.  p.  169.— Steriing, 
1666,  vol.  viii.  p.  335.-4  June  1675,  vol.  ix. 

f».  354,  **  'Tis  not  against  the  King's  dignity 
or  the  House  of  Commons  to  punish,  bv  ini- 
iinsonnient,  a  commoner  that  is  guilty  of  vio- 
lating their  privilege,  that  being  accordmg  to 
the  known  laws  and  custom  of  (mrliament,  and 
the  right  of  their  privilc^gres,  declared  by  the 
king's  royal  Predeceusors  in  Ibrmer  pariia- 
ments,  and  by  himself  in  this." — 1  April  1697, 
vol.  xi.  p.  765,  John  Salusbury. — 5  Jan.  1703, 
vol.  xiv.  p.  269,  Tutehin,  How,  and  Brag. — tZ 
May  1721,  vol.  zisL  p.  562|  Mist 


^<ionortkeirmrden,Vjthelbllawiiig  mediods; 
oamelv, 

I.  By  rnddnmuof  the  crawn  to  iwiie  prodt- 
imtioni  ibr  appranendiittr  those  persons  whe 
thiM  stood  ID  contempt  of  the  House  (2). 

U.  By  reDCfwinijr  their  orders  against  soch 
'  persons,  and  comniitting  them  in  a  subsequent 
session  fifpartiament  (3). 

II I .  By  orders  to  mayors,  bailiffs,  and  sheriffs, 
to  assist  the  Seijeant  or  messenger  for  the  ap- 
prehending of  such  penons;  or  to  the  Serjeant 
of  this  House,  to  call  on  the  riierifis  of  Mid- 
dlesex, and  the  sheriffii  of  other  counties,  and 
all  other  magistntes  and  persons,  for  their  as- 
natanoe  (4). 

IV.  By  committing,  for  breach  of  pririlege 
of  this  House,  those  officers  of  the  peM%  who 
haTc  refused  their  assistance  to  the  Serjeant  of ' 
this  House  when  so  called  on  (6). 

V.  By  imprisoning  those  who  reftised  to  re- 
lease persons  entitled  to  the  privilege  of  this 
House,  and  by  increasing  the  sererity  of  their 
restraint  according  to  the  nature  of  tlie  offence, 
and  in  consequence  of  the  contumacy  of  the  of- 
fender (6). 

With  regard  to  the  third  head,  namelj^, 
.  breaches  m  privilege,  and  contempts  of  tlus 

(9)  Sir  Giles  Mompesson,  S8  Feb.  and  3 
March  1620,  vol.  i.  p.  537.— Windebank,  Dec. 
10,  1640,  vol.  ii.  p.  18.— Sir  Basil  Brook,  April 
f  4,  1641,  vol.  ii.  p.  127. — Sir  John  Llovd,  &c. 
Jan.  8,  1680,  vol.  ix,  p.  702.— Brent,  Feb.  22, 

1688,  vol.  X.  p.  33.— ^r  Adam  Blair,  June  16, 

1689,  vol.  X.  p.  182— SCandish,  March  12, 1694, 
vol.  xi.  p.  966, — Mckenzie,  vol.  xi.  p.  416. — 
Grascomb,  Nov.  30, 1696,  vol.xi.  p.  602.— So- 
ranzie,  April  11,  1700,  vol.  xiii.  p.  S?l.— Jef- 
freys, Addy,  and  Clifton,  3Iarch  2.*)  and  26, 

1701,  vol.  xiii.  p.  427,  436,  437.— Colepeper 

and  otbent,  Marcli  28,  April  2,  1702,  vol.  xiii. 

p.  826.— Tutching,  &c.  Printers,  Feb.  14, 1703, 

vol.  xiT.  p.  336.— KioterK,  in  Sache«erors  case, 

March  2d,  4th,  and  6th,  1709,  vol.  x\l  p.  343, 

346.— Rebels,  4  and  6  Feb.  1715,  u»l.  xnii.  p. 

368.— Wilkinson,  0  June  and  4  July  1791,  ^ol. 

xix.  p.   585.— Lc-veriand,  6  March  1746,  vol. 

XXV.  p.  313.— A.  Murray,  26  Nov.  1751,  vol. 

xxu.  p.  309.— Reynolds,  11,  12,  15,  16,  and 

18th  tcb.  1768,vol.xxxi.p.  603, 606,610,612, 
618.  .        ,       ,      «, 

(3)  Harvey  and  Martin,  22  April  1713, 17th 
vol.  p.  298.— InrfefieW,  29  Jan.  1725,  20th 
▼ol.  p.  549.— Phillipsand  Barnes,  22  Jan.  1733, 
22d  vol.  p.  210.— A.  Murray,  as  above. 

(4)  Itatcliff;  14  Nov.  1640,  vol.  ii.  p.  29.— 
Sir  lsa»il  Brook,  Jan.  11.  and  25,  1641,  vol.  ii. 
P-.^^V"^***"  *"^  Tliompson,  21  Dec.  1660, 
vol.  vih.  p.  222.  -Dudley,  24  Jan.  1670,  ^ol. 
IX.  p.  193.— Topham,  4  June  1675,  P.  M.  vol. 
IX.  p.  353. 

^  (5)  Hastings  and  Crook,  19  May  1675,  vol. 
IX.  p.  341.— Topham,  as  above.— BMhe,  7 
April  1679,  vol.  ix.  p.  587.— Owen,  28  March 

1702,  vol.  xiii.  p.  826. 
(6)  Ferrers.— Sir  T.  Shirley  and 


House,  onderoohNiraiid  pRteneeoflaw ; 
pan  to  your  Committee,  that  the  aune 
been  attempted,  hy  discl|ai^g;iii^  out  of  cc 
penons  who  have  been  committed  by  or 
the  House: 

By  impleading,  in  the  courts  of  justice 
sons  intitlrd  to  die  privilege  of  tlus  Hoc 
the  cases  there  brought  in  question. 

By  prosecutions,  before  the  said  eomi 
work  or  actions  spoken  or  done  under  tb 
tection  of  this  House. 

By  accusations,  tcndiuj^  to  caD  in  ipM 
before  the  said  courts,  ivords  or  actions  so  s 
or  done,  under  fahe  or  pretended  denomin 
of  offences,  not  entitled  lo  the  privilege  c 
House. 

It  appeare  also  to  your  Committee,  in  ai 
ing  the  Journals,  that  in  the  above  redti 
stances  this  House  has  proceeded, 

1st,  By  takiiiir  again  into  custody  n 
discharged  without  order  of  the  House  (7 

^dly,  By  directing  Mr.  Speaker  to 
letters  to  the  justices  of  assize,  and  other ji 
to  stay  proceedings  (8). 

3dly,  By  resolutions  of  this  House,  Th 
suits  and  actions  commenced  and  carried 
these  cases  should  be  discontinued  and  am 
ami  should  be  deemed  violations  of  the 
leges  of  this  House  (P). 

(7)  Pemberton  and  othera,  2  June  167. 
ix.  p.351.  Duncomb,  March  22,  1691 
xii.  p.  174 ;  when  the  House  Resolved, 
no  |ierson  committed  by  this  House,  csmd,  i 
the  same  session,  be  dLscharged  by  any 
authority  whatsoever.  Charles  Dun 
ha%  ing  been  romuiitte<l  by  order  of  this  1 
and  aifterwards  discharged  hy  the  order 
House  of  Lnrds,  without  the  consent  o 
House ;  it  was  Ke.solvcd,  That  thesaid  C 
Duncombe  he  taken  into  the  custody  < 
Serjeant  at  arms  aticnfUngf  this  House. 

(8)  Strickland,  19  March  1605,  vol. 
287.— Potts,  2  Feb.  1606,  vol.  i.  p.  351.- 
rison,  26  and  27  Feb.  1606,  for  stay  of  Tk 
in  other  like  cases  has  been  usual,  vol.  i.  p 
343.  Sir  R.  Gargrave,  ISir  W.  King 
eodem  die  ei  loco.  Bond,  Feb.  28,  1606, 
p.  345.  Hyam,  5  Maroh  1606,  vol.  i.  p.  S 
Powlett,  5  May  1607,  vol,  i.  p.  369.  Bi 
ham,  13  May  1607,  vol.  i.  p»  373.  Bow 
May  1607,  vol.  i.  p.  375.  Johnson,  10 
1607,  vol.  i.  p.  38 1 .  Stone,  20  June  16a 
i.  p.  386.  Pelliam,  2  May  1610,  vol.  i.  p 
—Sanders,  18  and  21  May  1610,  vol.  i.  |i 
— **  Geneni  motion  about  letten  to  be  n 
to  the  justices  of  assize,  referred  to  the' 
mittee  of  privileges,  report  this  Resoli 
Res(»lvcd,  That  the  former  course  of  writii 
ters  to  the  justices  of  assize,  according  tl 
cedents ;  and,  if  required,  a  warratit  ibr  I 
tionto  the  party."  3  March  1620*  ral 
537.  Lord  Bulkley,  28  April  1691,  vol 
537. 

(9)  Sir  Robert  Howard,  17  Feb.  1625, 
p.  820.— Sir  WUUam  Wflliama,  7  Feh. 
voL  z.  p.  21»  146»  and  216.— HoUii  and^ 


STATE  TRIALS.  32  Cu a rlss  II.  1 6S0.^PH9ilege  ef  Parliamtni.         [70r 

Serjeant  to  repair  to  the  Compter  ih  Bread* 
street,  whither  the  said  Ferrers  was  carried*, 
and  there  to  demand  the  deliveir  ot*  the  pri- 
soner.   The  Serjeant  went  to  tlie  Compter,  and 
declared  to  the  clerks  there,  what  he  Iiad  in  - 
commandment ;    but  the  clerks  and  other  offi- 
cers of  the  city,  after  many  high  words,  Ibrcibly 
resisted  the  serjcant.      Whereupon  ensued  a 
tray,  in  which  the  Serjeant's  man  was  knocked 
down,  and  the  serjcant  was  driven  to  detend 
himself  with  his  mace  of  aitns.     During  this 
frav,  the  sheriffs  of  London,  called  Rowland 
Hill  and  H.  Suckley,  came  thither,  to  whom 
the  Serjeant  €M>mplained  of  this  injury,  and  re« 
ouired  of  them  the  delivery  of  the  prisoner ;  but 
they  took  part  with  their  officers,  and  gave  no 
attention  to  his  complaint,  and  contemptuously 
reiused  to  deliver  the  prisoner.      The  serjeant 
returned  to  the  House,  and  nude  his  report  of 
the  above  transaction ;  who  thereupon  would 
•sit  no  longer  without  their  burgess,  but  rose  and 
repaired  to  the  upper  House,  where  the  whole 
case  was  declared  by  the  mouth  of  theSi)eaker, 
before  the  lord  chancellor,  and  all  tlie  lords  and 
judges  there  assembled,  who,  judging  the  con-* 
tempt  to  be  very  great,  referred  the  pumshment 
thereof  to  the  order  of  the  House  of  Commons ; 
who,  being  returned  to  their  House,  ordf*red- 
the  Serjeant  to  repair  immediately  to  the  sheriffs 
of  London,  and  to  require  the  delivery  of  the 
prisoner,  without  any  writ  or  warrant,  though 
the   lonl   chancellor  offered  to  grant  a  wnt, 
which  the  House  of  Cwnioons  refused,  being^ 
cleaHy  of  opinion,  that  all  commands,  and  other 
acts  proceeding  from  their  House,  were  to  be 
(lone  and  executed  by  their  serjeant,  without 
writ,  oidy  bv  shew  ot  his  mace,- which  was  hie-' 
warrant. — I'he  sheriffs,  upon  this  second  de-* 
maud,  delivered  the  prisoner;    but  the  serjeant. 
in  pursuance  of  his  orders,  charged  the  said 
sheriffs  to  appear  before  the  House  the  follow- 
ing <lay,  by  eight  of  the  clock  in  tlic  morning, 
and  to  bring  tiuther  the  clerks  of  the  Compter^ 
and  such  other  of  thdr  otficers  as  were  parties 
to  the  fray. — The  serjeant  had  also  orders  to 
take  into  custody  the  said  White,  who  had  pro* 
cured  the  said  arrest,  in  contempt  of  the  privi- 
lege of  parliament.     The  sherins,  on  the  next 
day,  with  one  of  tlie  clerks  of  the  Compter,  who 
was  the  chief  occasion  of  the  fray,  together  with 
the  said  White,  app«»red  before  the  House; 
where  the  Speaker  charging  them  yviUtt  their 
contempt  andmbdemeaiiur  aforesaid,  they  Nvere 
I  compelled  to  make  immediate  answer,  without 
I  being  admitted  to  any  counsel;  although  sir  Ro« 
bert  Cholmley,  then  recorder  of  licmdon,  and 
other  the  counsel  of  the  city  there  present, 
offered  to  speak  in  the  cause,  ^I'liich  were  all  put 
to  silence,  and  none  sufl'ered  to  speak  but  the 
parties  themselves :  whereupon,  in  conclusioii, 
the  said  sherifis  and  White  were  committed  to 
the  Tower  of  London ;  and  the  said  clerk,  who 
was  the  occasion  of  the  fray,  to  a  place  there 
called  Little  ^nae^  and  the  officers  of  London 
call  Taylor,  with  four  otlier  officers,  who  had 
arrested  Ferrers,  were  conunitted  to  Newgate. 
*<  The  king,  bemg  iofonned  of  this  pfOMed» 


\  By  oomnuttiDg  those  judges  who  have 
led  to  the  trial  of,  or  pronounced  sen-  | 
ipoa,  penoDS  entttled  to  the  privilege  of 
«se,  tor  words  or  actions  spoken  or  done 
die  protedioD  of  the  privilege  of  this 
(iO). 

r  Comiinittee  have  selected  a  few  cases, 
noog  the  many  referred  to  in  the  margin 
Report,  which,  from  the  nature  of  their 
sluces,  or  the  importance  of  the  doctrine 
they  iUosirate,  or  toe  consequences  which 
RMUioed,  seemed  to  your  Committee  fit 
MTP  fully  slated  than  the  margin  would 
;  wA  9IV  therefore  added  as  an  Appendix. 
w  Committee  beg  leave  to  observe,  that, 
dttsrent  search  tliey  have  made  in  the 
ik,  uey  have  not  been  able  to  find  an 
e,  that  any  court  or  magistrate  has  pre- 
le  commit,  during  the  sitting  of  pariia- 
iB  officer  of  the  House,  for  executing  the 
of  the  House. 

jr  tanher  beg  leave  to  observe,  that  they 
nt  been  able  to  find,  that  there  has  ever 
%  instance,  wherein  this  House  has  suf- 
lay  person,  committed  by  order  of  this 
,  i»  oe  discharged,  during  the  same  ses- 
^  soy  otlier  auUiority  whatsoever,  with- 
■B committing  such  person, 
therefore,  with  regard  to  J.  Miller,  who 
ivered  from  the  custody  of  the  messenger 
(  lord  mayor,  who  fur  the  said  offence  is 
ider  the  censure  of  tlie  House ;  as  it  ap- 
ayour  Committee,  that  it  highly  concerns 
faity  and  power  of  the  House,  to  main- 
I  avthority  in  this  instance,  by  re-taking 
■i  J.  3lilkir ;  The  Committee  recom- 
ooDsiileration  of  the  House, 
it  may  not  be  expedient,  that  the 
edbMU  order.  That  the  said  J.  MiUer  be 
liMi  the  custody  of  the  Serjeant  at  Arms 
Avihs  House. 

i  ttat  the  Serjeant  at  Arms,  his  deputy 
he  strictly  enjoined  to  call  upon  the 
officers  of  the  peace,  and  other 
nho,  by  the  terms  of  the  Speaker's 
nt,  are  re<|uired  to  he  aidinjyr  and  assisting 
I  m  the  execution  thereof,  for  such  assist- 
■  the  Mid  Serjeant,  his  deputy  or  deputies, 
fad  met  wary  to  enable  him  or  them  to 
M»  calody  tbe  said  J.  Miller. 

Appendix. 

iflQB  oo  Joriidiction  of  Courts,  fo.  9, 10. 

bdM  34th  of  Henry  8th,  one  George  Fer- 
•  hvgeM  for  the  town  of  Plymouth,  was 
m  LoDdoa,  by  a  process  out  of  the 
~    at  the  suit  of  one  White ;    of 
House  being  inlbrmed,  ordered  the 

(Hftl,  ToL  ii.  p.  *i01  and  203.--Jay  and 

4Jiiiie  1689,  vol.  x.  p,Q4,  210,  SIS, 

-EKmt  13  and  14  April  1716,  vol. 

(V ;  aii4  on  the  16  April  the  cl«rk  of 

ma  oidered  to  erase  the  name  at  the 

•0ftheFiTeMembcrs,18  Jan.  t641, 
Jir.— JayaiidTopham,as  above. 


71]  STATETRIAL8,32CharlesIIJ680.— Proc«fite^tfly«MfR.I»«w|»J«i:  [ 

ihgr,  called  before  him  the  lord  chaDcellor  of;  swer,  and  he  claiming  iiri?iiege  as  beftre,  tb 
Eiffiland,  and  the  judges,  with  the  Speaker,  :  because  he  shewed  no  record  to  prore  bhi 
ajvlmany  others  of  the  House  of  Commons,  to  .  ]>ariiament  man,  pronounced  him  CoBtunm 
\rhom  he  declared  his  opinion  to  this  effect :  He  i  and  excommunicated  him ;  ordering  him  ^ 
commended  their  wisdom  in  maintaining  the  j  ther,  he  sliould,  before  the  19th  of  Slarch, 
]>rivilege8  of  their  House ;  he,  among  other  |  tend  one  of  the  Commissioners,  and  he  bov 
things,  further  declared,  That  he  was  informed  in  3,1)00/.  to  appear  the  Wednesday  after,  i 
by  his  judges,  that  he  at  no  time  stood  so  highly  stanil  to  the  order  of  the  court, 
in  his  estate  royal,  as  in  the  time  of  parliament,  *'  Resolved,  upon  question,  That  air  Rot 
when  he  as  heaii,  and  they  as  members,  are  Howard  ought  to  have  had  privilege  of  pari 
conjoined  and  knit  together,  into  one  body  poli-    ment,  nem.  con. 


tic ;  so  as  whatsoever  offence  or  injury,  during 
that  time,  is  offered  to  the  meanest  member  ^ 
the  House,  is  to  be  judged  as  done  against  his 
roval  person,  and  the  whole  coiut  of  parliament ; 
wmch  prerogative  of  the  coiut  is  so  great  (as 
his  learned  counsel  inform  him)  that  all  acts  ajid 
processes  coming  out  of  any  other  inferior 
courts,  must  for  Uie  time  cease,  and  give  place 
to  the  highest. 

^*  Whereupon  sir  Edward  Montagu,  then 
lord  chief  justice,  declared  his  opinion,  confirm- 
ing by  divers  reasons  what  the  king  had  said ; 
wuicn  was  assented  to  by  all  the  rest,  none 
flpeaking  to  the  contrary." 

This  case  is  abto  referred  to  by  sir  Robert  At- 
kyns,  in  his  tract  On  the  Power,  Jurisdiction, 
and  Privilege  of  Pftrliamcnt,  and  in  Dyer's  Re- 
ports. 


Robert  Howard's  Case,  February   17, 
1635,  vol.  1,  p.  8t0. 

'*  Motkm  made,  where  sir  Robert  Howard, 
during  privilege  of  pariiament,  was  excommu- 
Bicat»l  for  not  taking  the  oath  ex  officio, 

**  Resolved,  upon  question,  to  refer  this  to 
the  examination  of  a  select  committee,  Mr.  Sel- 
den  and  others. 

**  This  committee  to  take  consideration  of  the 
lestraint  and  excommunication  of  sir  Robert 
Howard,  and  to  make  their  report  to  the  House 
of  their  proceedings  and  opinions  thernn,"  p. 
391. 

Maich  21,  p.  839.  '*  Mr.  Selden  reports 
from  the  committee.  That  sir  Robert  stood  pri- 
vileged by  the  House,  when  these  proceedings 
were  had  against  him. — ^That  in>on  his  appear- 
ance before  the  oourt,  an  oath  was  tendered 
him,  to  answer  things  objected  against  him ; 
he  answered,  he  was  a  burgess  of  parKament. 
They  pressing  him  notwithstanding  to  answer, 
they  at  length  committed  him  close  prisoner  to 
the  Fleet.  Having  laid  two  days,  he  petitioned 
the  lonl  keeper  for  a  corput  cum  cauta ;  and 
upon  Mr.  Bembcfw's  certificate  tliat  he  whs  a 
parliament  man,  the  lord  keeper  enlarged  him 
by  the  10th  of  March. — That  day  the  court  of  j  hisrh  commission  court,  where  «pven  bisli 

high  commission  pressed  him  agam  to  answer ;  ;  present ;    and  knowelh,  tliat  then  all  the  i 
u.  ..i.:^..j  .,._  _^....         ,.       .. _  K .„  .  .    ..  .^  Howanl,  frtmi 

were  frustrated 
Marty n  affinned,  1 
llie  pariiament  sat  and  adjourned.  On  the  17th 
of  March  they  called  him  again ;  when  he 
feouglit  them  the  cony  of  the  inAm^re  of  re- 
tvn  under  Beinbow^s  hand,  and  the  oopv  of 
lito  Habeas  Corpus  iipcvn  which  he  had  been 
4tlknKid»    lliatfhabdBgagaiaprcMedtoan- 

1 


"  Sndly,  Resolved,  upon  question,  That 
Roliert  lloward  claimed  his  privilege  of  pari 
nient  in  due  manner,  new.  con, 

*^  Resolved,  upon  question.  That  a  day 
assigned  to  the  members  of  our  Honae,  i 
those  other  which  arc  commoners,  to  amwa 
the  House  their  proceedings  against  air  Rol 
Howard. — ^Tlus  to  be  done  upon  Friday  nc 
nine  o'clock. 

**  Those  nf  our  own  members  to  be  made  ( 
qiuiinted  with  tlic  dty ;  for  the  other  oonmM 
ers,  a  warrant  shall  issue  under  Mr.  Speaker 
band,  for  their  appearance  that  day." 

3nl  May,  p.  854.  '^  Sir  John  H^rwi 
called  in  alMut  sir  Robert  Howard's  buam 
and  interrogated  by  Mr.  Speaker,  &c. 

*'  Dr.  Pope  called  in,  and  interrogated. 

*'  Mr.  Mottersey,  the  R^^ter,  called  in,  i 
interrogated. 

*'  (/pon  question,  all  the  pmceedinga  ia 
high  oommuision  oourt  against  sir  Rol 
Howard,  from  the  1st  of  Fdl>ruary  22  Jan 
at  which  time  he  ought  to  have  had  his  pii 
lege  of  parliament,  declared  to  be  void,  i 
ought  to  be  vacated  and  anniliilatc<l. 

"  Secondly,  upon  quo^on,  whether  a  le 
to  be  wrilton,  by  Mr.  Speaker,  to  the  loit 
CanteriiiuT  and  tlie  rest  of  the  Lords,  i 
<»thers  of  the  high  commissioners,  for  auDull 
fif  the  said  i>roceediiig4  ?  the  House  divid 
Carried  for  tiie  negative. 

"  Upon  ouestiou,  sir  John  Hay  ward.  ! 
Pope,  and  ttie  Register,  called  in ;  and  the 
feet  of  the  said  order  declared  to  them  hr  ] 
Speaker ;  and  that  tlie  House  exp«:tcm  i 
be  done,  and  to  hear  by  Monday  next  that  i 
be  done ;  and  in  the  mean  time,  the  Houae' 
resiiite  any  resolution  concerning  tlicroaelf 
ana  that  tlmy  attend  the  House  again  on  M 
day  morning:  And  the  like  notice  to  be  gi 
to'hlr.  Comptroller  and  sir  H.  Slartyn,  by 
Serjeant :  all  which  was  done  by  Mr.  Hpei 
acconling^y." 

10  Juiic,  p.  069.     "  Sir  George  More 
fbniieth  the  Mouse,  That  he  was  present  at 


tlie  order  of  the  House  there  read  and  allow 
and  all  ordered  to  be  done  tlirre  accordingly 

**  Tuesday  next,  for  full  satisfaction  to 
given  to  this  House,  of  tlie  performance  of 
order  concerning  sir  Ro.  HonTird." 

On  June  15tb,  die  pdriiament 


*'UpaD  iuforumion  given  to  this-  House, 
Tktt  ikU mi  HI  SterlinfiT,  one  of  the 

ikrift  of  London,  being-  served  With  an  <»der, 
wpid  by  Mr.  SpeakmVy  to  discbarge  James 
l^it,  menia]  servant  to  sir  Henry  Herbert 
(fM  was  arrested  and  imprisoned  in  the  Poul- 
try Gempter)  out  of  prison  ;  the  said  sheriff 
nhatiio  obey  the  said  order,  or  discharge  the 
tii  Lvde ;  but  put  the  order  np  in  his  pocket, 
adfttd,  he  would  Answer  it  to  the  Sp^er  in 
^kHobs. 

•  "  Benlved,  That  the  said  sheriff  Sterhng  be 
MMb  this  moTBing  sent  for,  in  custody  of 
ieiojeant  at  arms,  to  this  House,  to  answer 
UfHMdemeuKor  and  breach  of  privilege." 

Dee.  19.  ''  llesohred.  That  sheriff  Sterling 
W  caHed  to  the  bar  of  this  House;  and  shall, 
ipiB  Ui  knees,  receive  the  reprehension  of  Mr. 
flrctkor,  for  his  contempt  and  breach  of  the 
•iff  if  this  House ;  and  that  he  be  continued 
■  Ike  custody  of  the  seijeant  at  arms,  till  he  do 
CUM  Lyde,  servant  to  sir  Henry  Herbert,  to  be 
irfmed  out   of  prison,  without  any  fees  or 

**  The  dieriff  being  called  in,  and  kneeling  at 
ihe  kr,  Mr.  Speaker  gave  him  a  grave  reiire- 
kaaoa ;  and  tokl  bun,  That  some  sheriffs  of 
IsnJBu,  for  a  less  offence,  liad  been  sent  to  the 
Tsvcr ;  but,  in  regard  of  his  loyal  affections  to 
Ui  n|eaty,  the  House  was  pleased  to  remit  his 
oftaee,  upon  the  enlargement  of  the  prisoner : 
bsttfait  he  should  remain  in  the  serjeant^s  cus- 
todlv  until  the  prisoner  was  released,  as  aforc- 

4  June,  167 5,  p.  m.  vol.  9,  p.  353.  *<  Or- 
^end,  Hiit  Mr.  Speaker  do  issue  out  a  warrant 
toMu  Tcdbam,  esquire,  serieant  at  anus  now 
f/^tadiBg  wim  House,  to  authorize  and  require 
bn,  that,  if  any  person  or  persons  shaU  attempt 
wgoaboiitto  arrest,  imprison,  or  detain,  him 
&Qni  oecnting  his  office,  or  from  his  attcnd- 
•nee  upon  this  House,  to  apprehend  such  per- 
MOi,  and  brin^  them  in  custody  to  answer  their 
l|RMfa  of  privilege ;  and  to  reunire  and  autlio- 
liietl  peisoiia  to  be  aiding  anci  assisting  to  liim 

IS6KU« 

4th  June,  168t),  vol.  10,  p.  164.  *'  A  Petition 
•f  John  Topham,  e:v|uirc,  was  read  ;  setting 
fcith.  That  he,  bcin^  a  Serjeant  at  arms,  and 
ittaidnig  ^e House,  m  the  year  1679  and  1680, 
*te  several  orders  were  made  and  dircxsted  to 
Ihe  Petitioner,  for  tfie  taking  into  his  custody 
theteverni  persons  of  sir  Charles  Neal,  &c.  9cc. 
•i  oihera,  for  several  misdemeanors  by  them 
mmitted,  in  breach  of  tiie  privilege  of  the 
BMse ;  and  after  that  the  Commons  were  dis- 
Mhed,  the  said  persons,  being  resolve'l  to  ruin 
fte  Petitii^er,  did,  in  Hilary  IVrm  the  33rd  or 
Ml  of  king  Charles  ,  sue  the  Petitioner  in 
^  King's-bench,  in  several  actions  of  trespass, 
toery,  and  iUse  imjirisonment,  for  taking  and 
dctunmg  them  as  aiortsaid :  To  which  actions 
Ae  Petitioner  pleaded  to  the  jurisdiction  of  the 
ionit  the  Mwlflevend  orders;  but  such  his  plea 


7S]       STATE  TRIALS,  32  Charlbs  H.  I  S^^O.-^PriviUge  of  Partttment        [74 

mi  18 1»ec«nU^voL8.  P-  336.      C.sb  of   ^Z^'St^^n  S^.S^e'S^t 

^^^*  pleaded  the  orders  in  bar  to  the  actions ;   not- 

withstanding which  plea  and  orders,  the  then 
judges  gave  judgmoit  against  him,  (Sec." 

6th  July,  p.  S09.  "  Colonel  Birch  reports 
from  the  Committee  of  privileges  and  elec- 
tions, to  whom  the  petition  of  J.  Topham  was 
referred,  Sec. 

"  Whereupon  the  House  Resolved,  That  this 
Houde  doth  agree  with  the  committee,  that  the 
judgment  given  by  the  court  of  Kipg*s-bench, 
in  Easter  Term,  34  Car.  9.  Regis,  upon  the 
plea  of  John  Topham,  at  the  suit  of  John  Jay, 
to  the  jurisdiction  of  that  court;  and  also  the 
judgments  given  agamst  the  said  Mr.  Topham, 
at  the  suit  of  Saniuei  Verdon,  &c.  are  iuegal, 
and  a  violation  of  the  privileges  of  parliament, 
and  pernicious  to  the  nghts  of  paiiiament, 

"  Ordered,  That  sir  Francis  Pemberton,  sur 
Thomas  Jones,  and  sir  Francis  W^-thens,  do  at- 
tend this  House,  on  Wednesday  mominir 
next."  ^  ^ 

19  July,  p.  227.  "  Sh*  Francis  Pemberton 
and  sir  Thomas  Jones  attending,  were  called 
in ;  and  having  been  hoard  in  their  dd^cmcc, 
were  committed  to  the  Serjeant  at  Arms,  for 
their  breach  of  the  privileges  of  this  House,  by 
^ving  judgment  to  over-rule  the  plea  to  the 
jurisdiction  of  the  court  of  King's-bench,  in 
the  case  between  Jay  and  Topham.'* 

The  Case  of  sir  William  Williams ;  against 
whom,  after  the  dissolution  of  the  parliament 
held  at  Oxford,  an  information  was  brought,  by 
the  Attorney  General,  in  the  King's-bench,  iu 
Trin.  Term,  36  Car.  3,  for  a  misdemeanor 
for  having  printed  the  information  against  Tho- 
mas Dangerfield,  which  he  had  ordered  to  be 
printed,  when  he  was  Speaker,  by  order  of  the 
House.  Judgment  passed  against  him  on  this 
information  in  the  second  year  of  king  James 
the  Second.  This  proceeding  the  Convention 
Parliament  deemed  so  great  a  grievance,  and 
so  high  an  infringement  of  the  rights  of  parlia- 
ment, that  it  aupears  to  your  committee  to  be 
the  principal,  ir  not  the  sole,  object  of  the  fii-st 
part  of  the  eightli  head  of  the  means  used  by 
king  James  to  subvert  the  laws  and  liberties  of 
this  kingdom  as  set  forth  in  the  declaration  of 
the  two  Houses;  which  will  appear  evident 
from  tlie  account  given  in  the  journal,  8tli  Feb. 
1608,  of  the  forming  of  that  declaration,  the 
eighth  head  of  which  was  at  first  conceived  in 
these  words  ;  viz.  *'  By  causing  informations 
to  be  brought  and  prosecuted  in  the  court  of 
King's- bench,  fur  matters  and  causes  cog- 
nizable only  in  parliament ;  and  by  divers  other 
arbitrary  and  illegal  courses." 

11  ftbruary  1688.  "  To  this  article  the 
Lords  disagreed ;  and  gave  for  a  reason,  be- 
cause the^  do  not  fully  apprehend  wliat  is 
meant  by  it,  nor  what  insiances  tiiere  have  been 
of  it;  which  therefore  they  desire  may  be  ex- 
plained, if  the  House  shall  thinJc  tit  to  insist 
further  on  it." 

12  February  1688.  <'  The  House  disagree 
vfiih  the  Lonb  m  then:  amendment  in  leaving 


7d]  STATE  TRIALS  3gCHAEL»slL  l6S0^Pr§€eii{wg$  iffilmmM.  fUmtam:  [rft 


out  die  ciglitfi  article.  Bnl  in  veneet  of  die 
Iflwrty  gnren  by  the  Lorde  in  fiptyning  thai 
matter: 

*^  tUnlrad,  That  dw  words  do  atand  in  tlua> 
manner  :*-By  proaecutiona  in   the  court  of 
Kii^-bendi  for  mattera  and  onaea  cognizable 
only  in  pailiamenty  and  by  direra  oueraibi- 
tranr  and  illegal  conraea." 

Hy  whidi  amendment,  yonr  committee  oh- 
aerfoa,  thatthe  Hooae  adapted  the  artide  more 
ciorrectljrtothecaaeth^nadinTievr;  for  the 
informalibii  waa  filed  m  long  CHiarlea  the  ae- 
cidnd's  time ;  but  the  yroaeeotion  waa  carried 
oily  and  judgment  obtamed,  in  the  aeoond  year 
ofldng/amaa. 

That  the  meaning  of  the  Houae  should  be 
made  more  endentto  the  Lords;  the  House 
OKderedy  '<  That  air  William  Williams  be  added 
to  the  mauqrera  of  die  conference;"  and  air 
WQliam  Wmiama  the  same  day  >^SPM^  die 
eonference.with  the  Lords :  ana  **  That  thenr 
lordships  had  adopted  the  article  in  the  woida 
aa  amended  b;^  the  Commons."  And  corre- 
sponding to  thia  article  of  gnenmce  is  the  as- 
aertion  of  the  right  of  the  sulgect^  in  the  mndi 
article  of  this  itecbratoiy  put  of  the  bill  of 
Rights :  ra.  '*  That  the  freedom  and  debatea 
or  proceedinga  in  parliament  ought  not  to  be 
iibpeaidied  or  questioned  in  any  court  or  place 
out  nf  parliament." 

To  which  may  be  added,  the  latter  part  of 
the  Sixth  Resolotion  of  the  Exceptiona  to  be 
made  in  the  bUl  of  Indemnity,  Journal,  ytil.  10, 
p.  140,  wherein,  after  reciting  the  surrender  of 
chart«nB,  and  the  viplating[  the  rights  and  free- 
doms of  electioDS,  &c.  tt  proceeds  in  these 
words :  '*  And  die  questioninfli:  the  proceced- 
ittga  of  parliament,  out  of  paniament,  by  de- 
darations,  informations,  or  otoerwise,  are  crimes 
for  which  some  persons  may  be  justly  excepted 
out  of  the  bill  or  Indemnity." 

On  die  lldi  of  June  1689,  p.  1T7.  "  The 
House  ordered,  That  the  records  of  the  court 
of  Kiri^'s-beticb,  relating  to  the  proceedings 
against  nilHam  Williams,  esq.  now  sir  ^Vu- 
liam  Williams,  knij^ht  and  baronet,  late  Speaker 
of  th»  House,  be  brought  into  thu  House,  by 
the  Gustos  Brevium  of  the  said  court,  on  Thurs- 
day morning  next."  ' 

On  the  12th  of  July,  p.  215.  "  The  record 
was  read ;  and  the  House  thereupon  Resolved, 
That  the  judgment  given  iu  the  court  of  King's- 
bench,  m  £aster  Term,  ^  Jac.  S,  against 
William  Williams,  esq.  Speaker  of  ^e  House 
of  Commons,  in  the  parliament  held  at  West- 
minster, 25  October  32  Car.  2,  for  matters 
done  by  order  of  the  House  of  Commons,  and 
as  Speaker  thereof,  is  an  illegal  judgment,  and 
against  the  freedom  of  parliament 

«  Resolved,  That  a  bill  be  brought  m,  to  re- 
v^erse  the  said  judgment." 

This  bill  was  twice  read ;  but  went  no  fur- 
ther m  that  session. 

^691.  28  April,  vol.  10,  p.  53r.    "  A  com- 

Twiiw  bcmg  made  to  the  House,  That  Sam. 

*gg;«^«w  William  Philipps,  esquires,  Walter 

'IHomboroi^,  an  attorney  at  law,  and  Francis 


tfeare,  liady  lora 

Sat  session  for 
TOttred  totom 
of  the  kmgdnm  ef  Iidaad,* 
Hooaeyoot  of  the 


i€fm 


« Ordered,  Tint  it  bt.  reAma4  aa^ 
Speaker,  9ce, 
^  Ordered,  Hut  Hbr.  ^eakor  4» 


nttht 


t: 


■»'.**< 


letter  to  the  protfaoootarr        _    „ 

out  and  totheafaeriff  of  dmeoiuritf  afti 

^bcoke  that  he  do  not  esaeqtey  M^  wntr  *^ 
the  lord  Bulkdcy'a  poaaaaMi  naqr 
tnrbed,  until  Mr.  Speaker  aball  hsna 
and  reported  die  matafer  to  the  JSai 
Houae  take  furdier  order  theniB." 

ina,  ApriKl4, 16, 16,  ToL  18,  p.  4tO.  H 
Houae  bemg  acquamted  diaft  JonatfaaMjP 
eaq.  a  member  of  thia  Honaei  has  )ftm 
moned,  by  John  Metoalf  and  Alena  ~ 
esoaires,two  jostioes  of  dia.peaoe  for 
of  teddfeaez,  to  apiiear  bsfare  tlMi%  la 
oatha  ai^ointed  by  die  late  act  ef 
which  aummona  waa  defivmd  in 
table,  and  read: 

«« Oidered,  Hiat  John  Metealf. 
ander  Ward,  eaquirea,  do  attend  thia 
morrow  moniiiu%" 

AprilU.  <«  Were caDed m:  IImv c 
leged  they  did  issue  a  warrant  for  I^. 
to  come  and  take  the  oadM;  b«t  tb|k  ~ 
not  know  he  was  a  w^mfpr  of  tlie 
til  they  had  made  a  return  into  the  qi 
sions. 

«  Ordered,  That  die  derk  of  die  . 
the  comity  of  Middleaex  do  attend,  npqii 
day  mormng  next,  with  the  retlun,  dee. 

Aprfl  16.  "  Ordered,  nem.  ooo.  IM  Al 
deputy  clerk  of  the  peace  fonr  the  tamt^4$ 
Middlesex  be  called  in,  and,  at  the  tahla,  anm 
the  name  of  Jonathan  Elford,  esq.  a  menbvfl 
this  House,  out  of  the  return  made  by  JohmMMt 
calf  aud  Alexander  Ward,  esquires,  two  -elMB 
justices  of  the  peace  for  the  aaid  f»ffnwfr^ 
such  persons  as  nave  been  summoned  by  ftiai 
to  take  the  oaths,  and  who  have  negfeoled  sal 
refused  so  to  do. 

"  Aud  Mr.  Hardestv  waa  called  in ;  mLd 
the  table,  erased  out  the  name  of  Fimathanji: 
ford  accordingly." 

14  Nov.  1640,  S  vol.  p.  39.  "  Ont^a^ 
That  a  warrant  shall  issue,  under  Mr.  n^iajiaill 
hand,  to  all  mayors,  justices  of  peaioet  bsflMlb 
sheriffs,  constables,  and  (^er  ma  mqjaalj^ 
officers  of  this  kingdom,  requiring  them  tapp 
assistant  to  the  bearer  or  bearera  m  die  aiaiimt 
of  this  House,  for  die  bringmgin  aafe  riMfcufff 
sir  G.  Raddiffe  to  this  Hoiue,7or  the. better  aSl 
more  effectual  execution  of  hia  d)r 
warrant." 

January  11th  1641,  vol.  9,  p.  3? I. 
dered,  Tnat,  in  the  execution  of  the 
this  House  for  the  apprehending  of  sir 

Brooke,  the  Seijeant  at  Arma  attendiiM^T 

House,  his  deputy  or  deputiea,  doiei|iSe  ^ 
aasistance  of  aU  sherids,  justices  of  peaee»  ep* 
stables|  and  other  officers,  fortheapprehendhg 


17]       STATE  TRIALS,  32  Charlbs  II.  l6S0.— Privilege  of 


[79 


flf  the  sud  mr  Bazil  Brooke ;  and  to  use  all 
■fHBUe  dilqpeiice  herein." 

91  Deixiiifaer  1660,  toI.  8,  p.  929.  <*  This 
HMMhaviDff  formcriy  ismied  an  order  for  the 
Meat  at  £nii8,  &c.  to  send  lor  in  custody 
Wiboi  Nabbs  and  Mr.  Bfaurice  Tompson, 
Arviofatine;  the  pririlefl^  of  this  House,  in  tlie 
ow  of  sir  Francis  Lawleyi  and  being  inibrm- 
fi  ibt  the  said  Nabbs  withdraws  himself;  and 
te  tbe  aerieant's  d^uties,  who  bad  in  charge 
ibe  warrant  as  to  Mr.  Tompson,  were  dtfnied 
■Uftnoe  to  him ;  and  that  slighting  and  con- 
iwaplaoQa  words  were  given  touching  the  war- 
IHI;  tbe  said  deputies  were  called  in  to  the 
.  iv  if  this  House,  and  examined ;  viz.  Walter 
(Ml  and  Simon  Lowen. 

"Acsobed,  That  Mr.  Maurice  Tompson  be 
■it  ftr,  in  custody,  as  a  delinquent ;  and  that 
lbs  Seijeant  at  Arms  be  empowered  to  break 
lycB  Mr.  Tompson's  house  in  case  of  resist- 
■K,  and  also  to  brine  in  custody  all  such  as 
Ml  make  opposition  tnerein ;  and  he  is  to  call 
H  \m  assistance  the  Sheriff  of  Middlesex,  and 
iliAer  ofiicers  as  he  shall  see  cause,  who 
mnqoiredto  assist  him  accordingly." 

immry  94»  1670,  vol.  9,  p.  193.  '*  Infor- 
■itiBn  bemg  given  of  a  very  high  contempt 
nrf  Bysdemeanor  committed  against  the  House, 
iy  wsuhiug'  and  beating  George  Dudley,  de- 
,  Pi^  to  4ie  Seneant  at  Arms,  and  rescuing  out 
«f  bs  ciiilody  Tliomas  Parsons,  (Sec. 

"  Which  misdemeanor  and  rescue,  the  said 
IM^  did  testify,  was  oonunitted  by  Mr. 
Ma  Cox,  under  sheriA' of  the  county  of  Glou- 
cater,  and  his  bailiff  and  others. 

^  Kcsolved,  That  the  Serjeant  at  Arms  at- 
iafing  this  House,  or  such  deputy  or  deputies 
as  he  MHiD  appoint,  do  apprehend  and  take  into 
oBlody  Mr.  John  Cox,  under  sheriff  of  the 
OBonty  cf  Obncester,  ^ViUiam  Forder,  &c.  <Scc. 

"  Aad  tbe  high  sheriff  of  the  county  of 
Cbucerter,  and  other  officers  concerned,  are  to 
be  reipiired,  by  warrant  from  Mr.  Speaker,  to 
be  aidmcf  and  assisting  in  the  execution  of  such 
wiirantl" 

Tide  also— Topham,  as  before,  Jime  -J,  1675. 

86FebnuDry  1701,  vol.  1.3,  p.  767.  "  Re- 
fohed.  That  to  assert,  the  House  of  Com- 
OMnshave  no  power  of  commitment,  but  of 
tbcir  own  members,  tends  to  the  subversion  of 
tbe  constitution  of  the  House  of  Commons." 

iRtpartM  from   Commiitee$  of  the  Houic 
of  Commons,  vol,  3,  p.  6.3 

Hie  Committee  consisted  of  the  following 
foions: 

The  right  hon.  Wettmre  Ellis ;  Mr.  Solicitor 
General,  (Alexander  Wedderbume,  afterwards 
carl  of  Kosslyn  and  successively  Lord  Chief 
JiKtice  €if  the  Court  of  Common  Pleas  and 
LonI  Chancellor) ;  Mr.  Attorney  General,  (Ed- 
wird  Tlinriow,  aderwards  lord  Thurlow  and 
Lord  Chancelkn*) ;  Jeremiah  Dyson,  esq. ; 
Rose  Fuller,  eso. ;  The  right  hon.  sir  Gilbert 
Eflbt,  hart. ;  Sir  HenryHogfaton,  bart. ;  Sir 
Bllbun  Bagut^  bart^  The  right  hon.  Hans 


Stanley ;  Sir  Thomas  Clavering,  bart ;  Ro. 
bert  Henley  Ongley,  esq. ;  Thonu»  De  Grey, 
esq.  ;  The  right  lion,  lord  John  Cavendkb; 
The  right  hon.  lord  George  Sackville  Gennain ; 
The  hon.  John  Yorke ;  The  hon.  Charles 
Marsham ;  The  Lord  Advocate  of  Scotknd ; 
Doctor  William  Burrell ;  John  Buller,  of  £xe« 
ter,  esq. ;  Sir  Roger  Newdigate,  bart. ;  Fre- 
derick Montagu,  esq. 

This  report  is  said  to  have  been  prepared  by 
the  Attorney  General  and  Solicitor  General. 

Thus  it  appears  that  there  are  abundance  of 
precedents  of  punishment  by  tbe  House  of 
Commons  for  breach  of  privilege,  and  accord- 
ingly lord  Hale  ^^iee  1  Hargrave,  Juridical  Ar« 
gunients  and  Collections,  p.  7.)  says,  <^  surely 
the  right  of  criminal  punishment  ot  breaches  of 
privilege  of  the  members  of  the  House  of  Com* 
mons  by  long  and  ancient  usage  belongs  to  the 
House  of  Commons,  but  not  to  give  damages." 

Precedents  should  not  by  any  means  be 
slighted.  On  the  contr«iry  m  the  law  of  Eng- 
land  they  are  contemplated  uith  very  great 
respect,  or  as  Mr.  Justice  Blackstonc(l  Conun. 
7 1.)  expresses  it,  '*  the  deciKions  of  courts  are 
held  in  the  highest  regard ;"  and  this  chiefly  as 
being  eviilence  of  what  the  law  is  ;  but  partly 
also,  as  it  seems,  for  the  preservation  of  urn- 
fonnity  an<l  prevention  of  uncertainty,  or,  ac- 
cording to  his  phrase,  **  to  keep  the  scale  of  jus- 
tice even  and  steady,  and  not  liable  to  waver 
with  every  new  judges  opinion ."  ( 1 .  Comm. 
69.)  But  this  regard  and  respect  for  precedents 
is  not  unlimited,  for,  as  the  same  learned  com- 
mentator instructs  us,  (vol.  1.  p.  71.)  **  the  law 
and  the  opinion  of  the  judge  are  not  always 
convertible  terms,  or  one  and  the  same  thing  ; 
since  it  sometimes  may  happen  that  the  ju^e 
may  mistake  the  law.'^  In  truth,  as  bishop  Bur- 
net'told  sir  William  Junes  (See  vol.  6.  p.  1491 
of  this  Collection) ''  a  precedent  n^nst  reason 
may  signify  no  more  but  that  the  Idee  injustice 
has  been  done  before.*'  Accordingly  the  excel- 
lent Chief  Justice  Vaugliau  said  in  the  Case 
concerxiing  '*  Process  out  of  the  Courts  at 
Westminster  into  Wales,"  (Vau^h.  Rep.  419.) 
**  l^recedeuts  are  uscfid  to  decide  questions  i 
but  in  such  cases  as  depend  u|)on  fundamental 
principles  from  wbich  demonstrations  may  be 
drawn,  millions  of  precedents  are  to  no  purpose." 
See  too,  u|>on  the  invalidity  of  the  longest  and 
most  unifunn  succession  of  precedents,  in  con- 
tradiction to  tiie  plain  unambiguous  words  of 
a  statute,  or  in  departiu*e  fi-om  tbem,  whether 
by  construction  or  otherwise,  the  powerful  ob- 
senations  of  Mr.  Erskiue  at  tlie  Trial  of  John 
Home  Tooke,  (a.  d.  179-1,  infra),  which  ob- 
servations were  recognised  and  reasserted  by  his 
lordship  in  the  House  of  Lords  on  the  7  th  ol  May 
in  tbe  present  year  1810  [See  Cobb.  Pari.  Deb. 
vol.  xvi.] 

That  zealous,  eloquent,  and  potent  friend  of 
establishments,  Mr.  Burke,  has,  indeed,  in  his 
anxiety  to  preserve  tlie  fabric  of  our  adiiiiiiihle 
constitution,  by  the  removal  of  whatever  is 
likely  to  impair  or  indanger  its  tbundationSy 


79]  STATETRIAIA5tCBAirLKsILl68O.---/V)0ccrdS«g:ii^ 


of  pieccduti  with  vciy^  faltle  levC'  f 
After  iutiodacii^  to  tlie  coBteni|iC  of. 
kii  hmm,  tboK  wbo  «*  are  proud  of  the  ao- 
ti^oity  of  tfadr  Hoaie,  and  defend  their  cr- 
lon  as  tf  they  were  defeadincr  their  inheritaooe, 
afraid  of  deroeatiD|^  fiooi  their  noUity,  and 
carefolly  avoi&i^  a  aort  of  bloc  in  their  soot- 
ffifaoon,  which  they  think  would  degrade  them 
fiir  t^v ;"  he  proceeds,  <«  It  was  thoa  that 
the  imfortunale  Charles  the  first  defended  him-  • 
aelf  onthe  practioeof  the  8toarts"  [I  coniec- 
tore  he  meant  the  Sjcoart]  **who  went  b«3bre 
him,  and  of  ad  the  Tudon.     His  partisans 
might  hare  gate  to  the  Plantagenels.    Tbev  . 
might  bare  tbimd  bad  examples  enoogh  bom  . 
abroad  and  at  home,  that  coiUd  hare  shewn  an 
Slaitnoiis  descent.     BoC  there  is  a  time,  when 
flienwil]  not  suffer  bad  things,  becanae  their 
anoestors  hare  sufleicd  worse.    There  is  a  time  . 
when  the  hoary  head  of  inreterate  abuse  will 
nrithiT  draw  rererence  nor  obtain  protection."  : 
gpecdiin  the  House  of  Commons,  Feb,   Jlth  i 
1780. 

And  it  most  be  admitted  that  when  oooside- 
tation  is  had  of  the  liability  of  the  powerful  to 
Mofennd  power  with  right  *  (a  topic  the  theonr 
•f  whieh  penrades  the  composition*  of  moral- 
ins  of  erery  ase,  and  of  erery  deacripiion, 
paats,  orators,  pnikMophers ;  and  the  practice  , 
of  which  is  proclaimed  in  almost  erery  page  j 
of  history)  It  may  perhaps  be  not  unressooame  i 
to  entertain  the  opinion  that  precedents  of  acts 
of  power  exercised  by  indiriuiods  or  bodies  of 
Dwo,  possessing  or  supposed  to  possess  suffi- 
cient strength,  physical  or  moral,  to  enlbrce 
the  ezerdse  of  such  acts  of  power,  are  not  of 
oqnal  ralidity  with  precedeniB  of  other  kinds, 
so  eridence  of  right.  This  opinion  will  derire 
nuich  support  from  many  parts  erf*  this  CoUec- 
tioQ.  See  the  early  State  Trials  as  refiTred  to 
hj  Foster  284,  the  great  Case  of  Impositions 
ID  this  Collection,  rol.  2,  p-  37,  and  Mr.  Har- 
crare'sadmiraUe  Introduction  to  that  Case ;  the 
Bistoty  of  the  Proceedings  out  of  which  arose 
the  Petition  oi'  Right ;  and  the  History  of  the 
Proceedings  out  of  which  arose  the  Rerolution 
in  the  year  1683.  See  also  the  Case  of  Penn 
and  Mead,  rol.  6.  p.  921,  and  the  notes  thereto ; 
And  Chief  Justice  Vanghan's  ai^gument  in 
Boshell's  Case,  rol.  6,  p.  999  of  this  Collection. 
6aetoo  the  particulars  of  lord  Loughborough's 
attempt  at  the  Summer  Assizes  1789  to  ex- 
act a  fine  of  fire  hundred  pounds  upon  the 
county  of  Essex,  for  defects  m  their  jad ;  as  to 
which  attempt  the  difference  is  to  be  noted  be- 
tween fines  imposed  upon  counties  by  a  judge, 
nod  amercements  upon  counties  assessed  6v  a 
jury  of  the  body  of  the  county.  The  law  rdat- 
ing  to  this  last  Case  has  been  rery  profoundly 
inrevtigatui  by  Mr.  Hargrare,  and  it  is  to  be 
hoped  that  he  wiQ  make  public  the  result  of  his 
raluable  lucubrations  ou  tlie  Subject. 

•  ^  Judges,"  says  lord  Hale,  (Jucisitictkmof 
LvdaHoMeorPwliafnentyp.  93.)"oommoiily 
•hilit  rothcr  to  amplify,  if  it  may  be,  than  to 
ahri^fotlkir  own  juriMictioD." 


The  Case  of  Trewynniard  has  1 

ttcn 

noticed  in  the  late  db 

COBBOmi   CODO 

enm 

vikge  of  parfiament. 

ItisgircBso 

Ml 

Mr.  Baron  Maacfea  in 

his'^CoOectiaBoi 

and  Records  cooccra 

mg  Pkifflfge 

of] 

mem,"  p.  &3. 

TacwTKoiBn's  Cjisx.  Easter,  36  and  31 
8,  A.  D.  1544,  m  B.  R  Tide  Dy< 
59,  b. 


'«  In  the  Kuur's-bendi  dv  case  wa 
One  WiUiam  Trew;\nniard  was  impi 
upon  a  writ  of  Exigait  that  iarard  upon 
pus  ad  Satisfiuaendnm  at  the  suit  < 
Skewb;  and  he  being  thereupon  taken  i 
cution,  a  writ  of  the  piiiilege  of  pailiBm 
sued  to  Robert  Chamond,  at  that  time 
of  the  comity  of  CornwaD,  rooting  tha 
wynniard  was  a  burges  of  parhunen 
likewise  reciting  the  custom  of  privilege  < 
liament.  The  sfaeriflfm  ohef&ence  to  ihi 
dorinjg  the  last  session  of  the  hut  parii 
hdd  in  the  35th  year  of  the  kine  that  i 
let  Trewynniard 'go  atlaige.  Heteop 
executors  of  Skewis  bring  an  action  o 
against  the  said  Chamond ;  and  they  den 
in  law  upon  this  matter. 

In  this  case  there  are  three  tfiingi 


''  1st.  ^Vhether  the  pririlege  of  paifi 
lay  in  this  case  for  a  borgem  of  the  parfi 
arrested  upon  a  writ  of  execution. 

"  tedly.  Supposing  the  pririle{(e  by 
case,  whether  the  part\',  upon  his  hem 
larged  in  consequence 'of  it,  shaO  by  ^w 
largcment  be  absolutely  discharged  fn 
execution  to  be  had  against  him  by  ihn 
party  at  any  time  hereafter,  or  only  duri 
time  of  pariiament. 

««3rdly.  Whether,  if  privilege  should  1 
not  to  lie  at  all  in  this  case,  the  baring  m 
obedience  to  this  writ,  as  the  king's  wan 
him  proceeding  firom  the  parliament,  sh 
be  a  sufficient  excuse  for  the  sheriff's  co 
and  dis(;harge  him  from  being  answerable 
pbuntiff  for  the  debt. 

*'  With  respect  to  the  first  point,  it  se 
that  priTilege  u  to  be  allowed  in  this  case, 
the  proof  w  this  it  is  necessary  to  cxmsid 
estate  of  parliament,  which  consists  ol 
parts,  namely,  the  king  as  the  chief  hei 
lords  chief  and  princijial  members  of  the 
and  the  commons,  to  wit,  the  knights,  cr 
and  burgCMit's,  as  the  inferior  memoers ;  \ 
together  constitute  the  body  of  the  pariii 
It  is  alsM)  proper  to  consider  the  electi 
these  members,  uith  what  care  and  sdk 
they  are  elected,  the  manner  of  perfi) 
which  elections  appeacs  in  the  statutes 
concerning  them.  And  when  they  are  < 
and  returned  to  parliament,  it  is  understi 
all  men  they  are  the  wisest  and  most  di 
men  in  the  kingdom,  and  the  fittest  to  * 
upon  the  good  of  the  commonwealth ;  ai 
cordingly  the  writ  of  summons  to  parfi 
directs  tnat  they  be  chosen  *  de  grarioii 
*  dMcrdNribiit  virin,*  6cc    And  after  tin 


STATE  TRIALS,  32  Charles  II.  l6S0,^Prmlege  of  Parliament.         [82 


, 'Chimed,  tbdr  personal  attendance  in  the 
"""^ntls  80  necessary  that  they  ought  not 
*■?  ^'Qsiness  whatsoever  to  be  absent,  and 
*'**  person  can  be  well  spared  because  he  is 
**^>7  member ;  and  for  this  reason,  if  any 
^^  dies  during  the  parKament,  a  ne\*'  one 
JJ^  <^boscn  in  bis  sU^,  to  the  end  that  the 
™*  liumlw  may  l>e  kept  up  undiminished. 
Jp  from  hence  it  follows  that  tl\e  person  of 
^^^ch  member  ou^ht  to  be  privUeged  from 
Ir'S2''wted  at  the  suit  of  any  private  person 
g""?^  time  that  he  is  busied  about  the  af- 
wJL*^  iung and  kingdom.  And  tliis  privi- 
^Msilwaj-s  been  granted  by  the  king  to  his 


J^T^ttiherfduest  of  the  Speaker  of  the 
J***«o»tllie  lirst  day,  kc.  Tlicrefure  com- 
Shdf?'*  directs  that,  inasmuch  as  the  king 
no  rf  ^'%'^^*™  *>»^'e  an  interest  in  tlie  ptT- 
ttj!l^^^^^  *^  members,  the  private 
|T|^*°gofany  particular  man  ought  not  to 

•ilBrf^.*  ^*  *^  **  *  maxim  in  the  law, 
I ^^J"^ dignnm  traliit  ad  se  minus  dig- 

\  fci  i  aJ'^'  ^^^  "***  *"  ^^^  ^^^  y^*^  ^^  Edw. 
rrrrfii'i-  '^^^  man  is  condemned  in  trespass 
beS^!?'  *?^  ''^ '"  execution  for  the  fine  to 
^^^"j»Ju  he  is  outlawed  for  felony,  his  body 


gg^^'pprisoned  at  the  suit  of'  the  party, 

Nui  »li2f    '^  ^**  an  interest  in  his  bwly, 

adDd^k'^^^"^  &c.     It  may  therefore  be 

-"*w  that  this  court  of  parliament  is  the 

auir  Mk  '^'^'''l''  *"*^  ^^  more  privileges 
adi  iLfc?^  court  of  the  kingdom ;   for 


liont^mt!^  it  seemeth  that  in  every  case 
.  j^  ^cepiion,  every  burgess  is  intitleCi 
JJJjf  ^hea  the  arrest  is  only  at  the  suit  of 
^r^»  *nd  the  present  case  is  stroncfer 


^v;»  «nd  the  present  case  is  stron^r 
ii^^^geion  onc«,  because  the  execution 
.^.j»yi>gthe  time  of  pariiament,  and  the 
t"~5J?|i>s election  whether  he  would  sue 
-LmJ^*^  against  his  body  or  against  his 
'j^jy.y^.  And  further,  every  privilege 
^^^  ^  prescription ;  and  every  prescrip- 
■™J poinotes  tne  public  wellare  is  (j[ood, 
■■*P*  ttniay  be  a  prejudice  to  some  private 
5'**'^Wi  m  the  time  of  Edw.  4,  a  prescrip- 
■■^*8iD  another  man's  ground  ailjoining 
•^**t  in  Older  to  erect  bulwarks  against  the 
^^PJ^oes,  was  held  to  be  good. 
J^  "Eipect  to  the  2d  point,  it  seemeth 
■^«prty  is  not  discharged  from  execution 
?  .  ^y/»r  *  certain  time :  for  it  is 
j^ywl  or  unreasonable  that  a  ju<lgment 
■■JhBat  one  time  executed,  and  at  anotlier 
^f^  i  M  when  a  fine  is  levied  with  a  re- 
[jM»ofw,  and  after  the  death  of  the  tenant 
ifeH^dntes,  and  he  in  remainder  recovers 
tmefkaaB,  and  afterwards  the  recovery  is 
WW  ftr  ever,  he  nr  his  heir  shall  have  a 
^  tore  facias  notwithstanding  it  was  once 
■BiBd;  fiiT  the  cause  wUlthen  cease:  and 
be  like  reason  the  person  of  a  man  may  be 
kgcd  for  a  certain  time,  and  yet  he  may 
Rpinb  be  put  in  prison ;  as  if  a  villain  comes 
freg  in  anftient  demesne  for  a  year,  his  lonl 
*  afterwards  lay  hands  upon  him ;  the 
;  the  same  where  the  presence  of  the  king 
loctoary  to  him ;  and  yet  formerfy  the 
L.  yiif. 


/ 


lord  might  have  seized  ujioii  him  aAenvards : 
by  the  same  reason,  \c.  And  there  is  a  differ- 
anc-e  to  be  made  where  the  ImxIv  of  a  man  that 
is  in  execution  is  set  at  large  by'the  airtliority  of 
the  law,  and  where  it  is  done  without  authority 
by  the  sheriflPs  own  will  and  boldncKS :  for  the 
law  will  save  all  rights  ;  as  in  the  cases  of  m1- 
lains  alwve-mentioned,  ihey  are  by  the  law  nri- 
vilegeil « pro  temnore ;'  but  ^if  the  lord  himself  in- 
franchises  them  by  manimiission  indeed  or  law 
for  an  hour,  tliis  infranchisement  is  good  fm* 
ever,  *  favoruin  libertatis.*  AUiO  the  law  by  a 
pluiicular  statute  directs  that  *  ces:t'.iy  a  que  use' 
niay  enter  and  make  a  ti^iTinent,  and  tliis  shall 
bind  his  leoffees  ;  yet  if  a  *  cestuy  a  que  in  use* 
tail  makes  a  feoffment,  this  is  no  discontiniiancp. 
Also  the  law  directs  that,  i<a  bishop  nresentoi  to 
a  benefice  by  lapse  upon"  default  or  the  riglit 
patnm,  yet  his  iircsentation,  whicjli  is  maik  by 
authority  of  the  law,  shall  not  prejudice  the  right 
pati-ons.  For  these  reasons  in  the  present  case 
this  enlanrement  by  writ  is  only  a  privilege  of 
the  burgess  *  pro  tein|>ore,*  and  not  a  discharge 

*  in  pfTpetuum  ;'  as  in  the  case  mcutione<l  alxive 
tliut  hap|ien(Ml  in  6  Edw.  4.  the  cxc>calion  of  the 
party  to  have  the  body  in  prison  was  suspended 

*  pro  tempore*  until  tlu*  king  had  imrdtmed  him 
the  felony,  but  attcnvards  is  revived,  •  prout  ad- 
'jiulicatur  ibidem,*  by  which  it  soemelh,  &c.  It 
thei'efbre  follows  that  no  action  is  given  against 
the  sheriff  for  the  escape,  unless  in  respect  that 
the  principal  debtor  is  ilischargcnl,  there  being 
no  reason  that  the  plaintiff  shoidd  l>e  twice  sa- 
tisfied for  the  same  debt,  for  which,  &c. 

And  as  to  the  tliird  point,  it  seemetli  that  the 
sheriff  is  not  answerable :  For  if  no  default,  or 
laches,  can  l)e  ascribed  to  the  sheriflT,  there  can 
be  no  reason  to  charge  him  with  the  debt ;  and 
there  seems  to  have  been  no  defaidt  in  him. 
For  the  office  of  sheriff  consists  chiefly  in  the 
execution  and  serving  of  writs  and  processes  <^ 
the  law  :  And  to  perform  these  he  is  the  im- 
mediate officer,  and  he  is  sworn  that  he  will 
pei-fbrm  them.  And  for  this  reason  he  is  bound 
by  his  office  and  oath  to  make  a  just  return. 
And  the  law  supposes  him  to  be  a  lay  ]iersony 
and  not  to  liave  knowledge  of  the  science  of 
the  law  ;  and  he  is  therefore  unable  to  argue  or 
dispute  whether  any  A^Tit  that  he  receives  comes 
to  him  with  or  without  sufficient  authority : 
and  ujK>n  this  ^^und,  if  a  (*apias  comes  to  him 
without  any  original  writ,  and  he  serves  it,  he 
will  I>e  excused  for  so  doing  in  an  action  of 
false  imprisonment.  The  law  is  the  same  if 
a  capias  or  an  exigfent  comes  to  .the  sheriff 
against  a  duke  or  an  earl,  against  whom  it 
does  notice.  And,  to  prove  that  the  sheriff  is 
not  hound  to  to  take  notice  of  the  law,  the  writ 
<  de  homine  re|ilegiando'  iHrects  that  tfie  sheriff 
shall  make  deiiverance  of  the  body,  unless  the 
man  was  taken  into  custody  by  the  special  com- 
mandment of  the  kinqr «  velcapitalis  justificarii, 
'  yel  pro  morte  homiiiis,  vel  pro  foresta,  vel  pro 

*  aliquo  alio  recto  quare  secundum  coiisuetudi- 
'  nem  Anglise  non  est  replejdabilis.'  And  fur- 
ther by  the  statute  of  Mar&ridgc,  cap.  8^  the 
sheriff  shall  be  amerced  V£  te  M^es^  «^  igwswwx 

G 


831  STATE  TRIALS,  3Q  Charles  II.  xSZO.-^ Proceedings  tgaiiut  R.  Tkompion:  [84 

You  have  very  properly  confined  your  quei- 
tioDS  to  the  particular  case,  tumishod  nie  by  tha 
affidavit  which  you  have  transmitted  to  ue; 
and  my  answers  therefore  need  involve  in  them 
no  general  discussions  upon  the  principles  <iC 
civil  ^vemnient,  which  m  the  mere  amtFMt 
are  not  often  u^teful,  nor  always  intelligible. 
The  projK)sition8,  to  which  my  answers  art 
meant  strictly  to  apply,  are. 

First,  WliL'thcr  the  tacts  changed  by  the  aiBr 
davit,  (m  which  your  court  of  Kjnif 's-bench  ii 
proceeiling  agahist  the  magistrates  of  Leitrim, 
are  sufficient  to  warrant  a.:y  €Timinal  prosecu- 
tion for  a  misdemeanor  whatsoever  ? 

Secondly,  Whether,  supposing  tliem  snfE- 
cicnt  to  warrant  a  prosecution  by  informatioii 
or  indictment,  the  court  has  any  jurisdieliQi 


for  n?dweisi:i  »vitliout  s{)ci-ial  precept.  And 
also  the  statute  of  Wl^slm.  'i,  c.  11,  *  de  servi- 

*  entibus  i-t  l>i\lUvis,*  ordains  ihat,  if  any  iiiaii 
is csindomiitxl  in arreamjres  hil'orc  auditors  and 
committed  »o  the  uv\i  i^Hol,  the  sheriff  or  gaoler 
shall  not  deliver  him  by  a  writ  »  dc  homiiie  re- 

*  plejfiando,nec  nliter,*  \*ithout  the  consent  of 
his  master.  And  yet  if  tlwj  party  sues  by  his 
friends  and  obtaii»  a  writ  oi'  £x  parte  talis 
returnable  in  the  Exchequer,  he  may  let  him 
go  at  large  :  and,  notwithstanding  that  he  is 
onee  duiciiar&fe<l,  if  it  ap|iearsu}»on  the  exami- 
nation of  his  accounts  that  he  was  in  arrears 
and  duly  comihitted  to  prison,  he  shall  be  re- 
manded'to  prison  quonsque,  Sec.  ^Vndletus  sup- 
pose that  the  sheriff  in  the  present  case  had  dis- 
oKeved  this  uiit ;  what  damage  must  he  not  have 
suffered  ?  He  would  have  l)een  in  danger  of  per- 
jury, and  also  of  imprisonment  of  his  body,  and 
ransom  at  the  king's  wi'l :  and  this  was  dune  in 
this  same  parliament  against  Hill  and  Suckley 
the  sherifls  of  London,  who  were  committed  to 
the  Tower  for  their  contempt  becaase  they 
would  not  let  George  Ferris,wlio  was  arrested 
upon  an  exocution/go  at  large  when  the  Ser- 
jeant at  arms  came  to  deman<l  him,  though 
without  a  M  rit.  And  it  is  probable  this  prece- 
dent was  a  terror  to  Charaond,  and  made  him 
learful  of  disobeying  the  writ  of  pariiament 
which  is  the  highest  court  of  the  kingdom. 
And  it  appears  ])lain]y  by  the  writ  that  they 
were  clearly  of  opinion  in  the  parliament  that 
the  p^rty  ought  to  have  his  privilege  in 
this  case  ;  for  otherwise  the  writ  woiikl  only 
have  been  an  Habeas  CorpiLs  cum  causa, 
which  writ  is  oftentimes  granted  before  the  jus- 
tices are  agreetl  whether  privilege  lies  in  the 
case. or  no  ;  and  if  tliev  find  that  privilege 
does  not  lie  in  the  case  before  tliem,  they  re- 
mand the  matter  with  a  procedendo  ^c.  And 
therefore,  althougli  the  parliament  should  have 
acted  erroneously  in  grantin  gthe  writ,  yet  their 
art  cannot  be  reiiseil  by  any  other  court :  and 
therdore  there  is  no  default  m  the  sherifiL 


Tlie  following  acoounts  of  the  sentiments  of 
two  great  men  on  matters  connected  with  this 
subject  are  voy  well  worth  preserving.   , 

Mr.  Erskine's  Opinion  of  the  Proceedinpt  qf 
the  Court  of  King^^-Bench  in  Ireland,  by 
Attachment y  written  to  a  Gentleman  of  Mgh 
Reputation  at  the  Bar  in  Dublin.* 

Sib  'r  Bath,  Jan.  Id,  1785. 

I  <eel  myself  very  much  honoured  by  your 
appUcatkm  to  me,  on  an  occasion  so  important 
to  the  public  freedom ;  and  I  ody  lament,  that 
neither  my  aj^  por  experience  are  such  as  to , 
|p?e  wv  opiiooo  any  authority  wkh  die  covt 
^  wliick  you  practise ;  but  wMserer  I  have  no 
dbubt,  I  am  always  n»dy  to  say  what  I  think, 
and  you  are,  therefore,  very  welooiue  to  my 
most  public  sentiments,  if  any  use  can  be  made 
of  tliem. 


*  PnUshed  in  the  IHoniing  Chronicle  news- 
tffer^  1810. 


to  proceed  by  attachment  ? 

As  you  are  pushed  in  point  of  time,  I 

venture  to  answer  lioth  tliese  questions  at  BaA| 
without  the  assistance  of  my  books,  becauM 
they  would  tlirow  no  light  upon  tlie  first  fi«B 
its  singularity,  and  the  Ust  is  much  toocleariD 
require  any  from  them. 

As  to  the  fu^st— The  facts  charged  by  the  af- 
fidavit do  of  themselves  neither  establish  nsr 
exclude  guilt  in  the  defendimts.  In  one  Mil 
of  society  Kuch  proceedings  might  be  higWy 
criminal ;  and,  iu  another,  truly  ^irtuoat  nd 
Ic^l. 

fo  create  a  national  delegation  amongst  a 
free  people,  already  governed  by  rcpresad*-' 
tioii,  can  never  be,  under  all  circunistancesi  i 
crime:  the  objects  of  sucli  delegation,  and  At 
purposes  of  those  who  seek  to  effect  it,  em 
alone  determine  the  quality  of  the  act,  aiid  At 
guilt  or  innocence  of  the  actors. 

If  it  ]K>ints  (no  matter  upon  what  necearity) 
to  supersede  or  to  controul  Uie  existing  govcnH 
ment,  it  is  self  evident,  that  it  cannot  be  tole- 
rated by  its  laws.  It  may  be  a  glorious  revsla- 
tion,  but  it  is  rebellion  agaiust  &e  govemimil 
which  it  changes. 

U,  on  the  other  hand,  it  extends  no  fuitinr 
than,  to  speak  with  certainty,  the  united  ?0M 
of  the  nation  to  its  representatives,  without  a^ 
derogation  of  their  legishitive  auUiority  Mi 
discretion;  it  is  a  legal  proceeding,  wlikk 
ou^ht  not  indeed  to  be  lightly  enter^uned, 
which  many  national  conjunctures  may 
wise  and  necessary. 

The  Attorney  General  might,  undoubtadl|b 
convert  the  facts,  contained  in  the  affidavit,  if 
toalegalchargeof  ahighnusdemeanor;  wkkh 
when  properly  put  into  the  ftmi<yr  an  inSanum 
tion,  the  defendants  could  demur  to  :  but  ki 
could  not  aocomplidi  this,  without  putting  OMJ 
the  record  averments  of  tiiicir  csriimnal  purpi^ 
and  intentions ;  tlic  truth  of  whirii  vwrmm 
are  facts  which  he  must  establish  at  the  ft 
or  fail  in  his  prosecution.    It  is  the  provinoi 
tlie  jury,  who  are  the  best  judges  of  the  atfll 
the  nation,  and  the  most  <leeply  interaeted  in 
preservation  of  its  tranouiUity,  to  say,  by  iL 
verdict,  whether  the  defendants  acted  ft 

iprincipke  of  public  spirit,  and  for  the  sum 
of  good  government,  or  sougbt  aeditiMiiil] 


STATE  TRIALS,  3^  Cii ar les  II.  1 6S0.—Privnmi  of  Parliament.        [86 


jb  it. — ^llie  one  or  the  other  of  these  ob- 
would  be  collected  at  the  trial,  from  the 
iict  of  the  defendants  in  sununoDing  the 
iagf  and  the  purposes  of  it  ^hen  met. 
the  jury  saw  reason  from  the  evidence  to 
i  that  its  olgccts,  ho%«ever  ct)loure<l  by  ex- 
sons  the  most  guarded  and  legal,  were  in 
t,  and  intended  to  be,  subversive  of  govem- 
i  sad  order,  or  calcubited  to  stir  up  discon- 
witbout  adequate  objects  to  vindicate  the 
eatlentioa  of  thepablic,  theyivoiddbe 
d  ia  conscience  and  m  law  to  convict  them  : 
if^  on  the  other  hand,  their  conduct  ap- 
f4  to  be  vindicated  by  public  danger  or  ne- 
iiT,  ilirected  to  leg^  objects  orrelbrma- 
ud  animated  by  a  laudable  zeal  for  the 
vr  and  prosperity  of  the  nation ;  then  no 
rture  from  accustomed  forms  in  the  maii- 
f  astembling ;  nor  anv  incorri*ct  expres- 
in  the  description  ot^thcir  object,  would 
«r  even  justify ,  a  jury  to  convict  them  as 
en  of  the  ^vernment,  or  disturbers  of  the 


>com[*itntp  a  leg^\  chai^eof  either  of  these 
on,  the  crown  (as  I  before  obsen'ed)  must 
the  criminal  intention,  which  is  the  es- 
t  €f  every  crime ;  and  these  averments 
the  either  fntned  at  the  trial,  or,  if  to  be 
icd,  prifHa  Jaeie^  from  the  facts  themselves, 
be  irlmtted  by  evidence  of  the  defendants 
i:nt  purposes.  If  the  criminal  intent 
^  b}  the  information  be  not  established 
c  tttbc&ction  of  the  jury,  the  information, 
b  charges  it,  is  not  true ;  and  they  are 
d  to  say  so  by  a  verdict  of  acquittal,  i 
hnvftre  of  opinion  (in  answer  to  the  first 
tiBa).  that  the  defendants  are  liable  to  be 
KBttd  by  information  ;  but  that  the  suc- 
'  if  Mch  prosecution  ought  to  de^iend  u])on 
•TJaHB  which  the  people  of  Ireland,  fonn- 
■  jsnr,  shall  entertain  of  their  intention  in 
the  meeting,  and  the  real  bona  fide 
ttof  the  assembly  when  met. 
ii  oaneoessary  to  enbip(^e  upon  these  prin- 
\  because  their  notoriety  has  no  doubt 
'  this  novel  attempt  to  proceed  by  at- 

where  they  have  no  place ;  and  I 
R  bdp  renaarking,  that  the  prosecutor  (if 
weeotion  be  founded  in  policy  or  justice) 
Blad  with  ffreat  indiscretion,  by  shewing 
K  is  afraid  to  trust  the  people  with  tliat 
m  upon  it,  which  belongs  to  them  by  the 
iMioD ;  and  which  they  are  more  \ikx\y 
t  with  impartial  justice,  than  the  judges 
ihedeaireato  decide  upon  it  at  the  ex- 
^flf  tbeir  oaths  and  of  the  law. 
bii'a  strong  expression,  which  perhaps, 
ii  ao^lmve  used  in  anwrerin^  the  same 
jb.te  onlinaiy  course  of  busmess ;  but 
M»]M  aa a  gentleman,  1  have  no  scniple 
■itiwt  tlie  judges  of  the  court  of  King's- 

Ml  entertain  a  jurisdiction  by  attach- 

dse  Salter  oootained  in  the  affidavit 
sent  me,  without  such  a  gross 
kboae  of  power,  as  would  make 

il-Myduty,  were  I  a  memborof  the 
la  cdlthanloaooottiitfiNrit 


The  rights  of  tWe  supeiior  courts  to  proceed 
by  attachment,  and  the  liniiuitioiis  imposed 
upon  that  right,  are  established  upon  principles 
toojdain  tu  be  misunderstood. 

E\ery  court  must  ha\c  power  to  enforce  its 
own  process,  and  to  vindicate  contempts  of  its 
authority;  otherwise  the  laws  would  be  de- 
spised, and  this  oUrious  necessity  at  once  pro- 
duces and  limits  the  process  of  attachincnL 

Wherever  any  act  is  done  by  a  court  which 
the  subject  is  bound  to  obey,  obi'dicnce  may  be 
enforced,  and  disobedience  punisbofl,  By  that 
summary  proceeding. — Upon  this  principlo  at- 
tachments issue  against  officers  tor  contempts 
in  not  obeying  the  process  of  courts  directed  to 
them,  as  the  ministerial  sen'ants  of  the  law  and 
tlie  parties  on  whom  such  process  is  served, 
mny,  i»i  like  manner,  be  attached  for  dis- 
obt^li.»nce. 

Many  other  cases  might  be  put,  in  which  it 
is  a  It^l  proceeding,  since  every  act  which  goes 
directly  to  frastrate  the  mandates  of  a  coiirt  of 
justice,  is  a  contempt  of  its  authority.  But  I 
may,  venture  to  lay  down  this  distinct  and  abso- 
lute limitation  of  such  process,  viz. — That  it 
can  oid^  issue  in  cases  whert^  the  i-ourt,  which 
issues  It,  has  awarded  some  process — gii'en 
some  judgment — made  some  legal  order — or 
done  some  act,  which  the  jj^arty  aj^ainst  Whom 
it  issues,  or  others  on  whohi  it  is  bmding,  have 
either  neglected  to  obey,  contumaciously  re- 
fused to  submit  to :  excited  others,  to  defeat  by 
artifice  or  force,  or  treated  with  terms  of  eon- 
tumelv  and  disrespect. 

But  no  crime  however  enormous,  c^ven  open 
treason  and  rebellion,  wiiich  carries  with  them 
a  contempt  af  all  law,  and  the  authonty  of  all 
courts,  can  possibly  be  considered  as  a  ooQfk 
tempt  of  any  particular  c*ourt,  so  as  to  be  pu- 
nishable by  attachment,  unless  the  act,  which 
is  tlie  object  of  that  puuLslimeiit,  be  in  -direct 
violation  or  obstruction  of  stHnethiiig  pre? iously 
done  by  the  court  which  issues  it,  and  which 
tlie  party  attached  was  bound,  •  by  some  ante- 
cedent proceeding  of  it,  to  make  the  ride  of 
his  conduct.  A  coustructive  extension  of  con- 
tempt beyond  the  limits  of  this  phun  princi^de 
would  evidently  involve  every  misdemeaii'ir, 
and  deprive  the  subject  of  the  trial  by  jury,  iii 
all  cases  where  the  punishment  does  note.-kiend 
to  touch  his  fife. 

The  pecuKar  excellence  of  the  English  go- 
vernment consists  in  the  right  of  being  judged 
by  the  country  in  every  criminal  case,  and  not 
by  fixed  magistrates  aj[)poiiiti^l  by  tlie  crown. 
In  the  higher  order  of  crimes  the  people  alone 
can  accuse,  and  without  their  leave,  distinctly 
expressed  by  an  indictment  found  before  tlieni, 
no  man  can  be  capiully  arraigned ;  and  in  all 
the  lesser  misdemeanors,  which  eithi^r :  lie  crown 
or  individnals  borrowuig  its  authority,  may 
proseeitte,  the  safety  of  iiidividiuds  and  tiie 
iiuhlic  freedom  absolutely  depend  upon  the  well 
known  immemorial  ri^ht  oi  t  very  defendant  to 
throw  himself  upon  hu  coui-rty  mv  il.^:ivcra:ice 
by  the  general  plea  of— -Not  ijiuit^ .  \>y  mat 
plea,  which  in  no  such  case  can  bedemurrad  ta 


87]  STATE  TRIALS,  32  Chablks  11.  \6S0.^Prac€eding8  agikui  R.Tkm]^ 


by  tbe  crown,  or  questioned  by  its  judges,  the 
whoie  cbaqre  conies  before  the  jury  on  the  jje- 
nend  Iks  ic,  who  have  a  jurisdiction  co-cxteu- 
sive  wiih  the  arcusatiou,  the  cxcrcis'j  of  which, 
in  every  iiistancf*,  ihe  autboriiy  of  Uie  coiirt  can 
neiiher  Iruiii,  su^ierscde,  contnnd,  or  punish. 

Whenever  this  cea*>es  to  be  the  law  of  Eng- 
land, the  EnK^i^h  constitution  is  at  an  end,  and 
its  \\enfH\  in  Ireland  is  arrived  aiready ,  if  the 
court  ot  liing*$-l>eDch  cmii  convert  every  crime 
by  construction,  into  a  contempt  of  its  authu- 
nty,  in  order  to  punish  by  attachment. 

By  tills  proceeding  the  |>arty  oftended  is  the 
judge ;  .creates  the  oifence  without  any . previ- 
ous promulgation  ;  avoids  the  doubtful  and  te- 
dious ceremony  of  proof,  hy  forcing  the  de- 
fendant to  accuse  himself;  and  inflicts  an  ar- 
bitrary punishment,  which,  if  not  submitted 
to  and  reverenced  by  the  nation  as  law,  is  to  bo 
the  parent  of  neiv  contempts,  to  be  punished 
like  the  former. 

As  I  live  in  England,  I  leave  it  to  the  par- 
liament and  people  of  Ireland  to  consider  what 
is  their  duty,  if  such  authority  is  assumed  and 
exercised  by  their  judges  ;  if  it  ever  liap[>en, 
in  this  country,  1  shallgivc  my  opinion. 

It  is  sufficient' for  me  to  have  given  yon  my 
judgment  as  a  lawyer  upon  both  your  ques- 
tions ;  yet,  as  topics  of  puhcy  can  never  be  mis- 
placed when  mugistrates  arc*^to  exercise  a  dis- 
oretiouary  authority,  I  cannot  help  concluding 
with  an  observation,  which  both  tiie  crown,  and 
its  courts  would  do  well  to  attend  to  upf>n  -eTcry 
occasion. 

The  great  objects  of  criminal  justice  are  re- 
formation and  example ;  but  neither  of  them 
arc  to  \ye  produced  hy  punishments  which  the 
laws  will  not  ^varrant :  on  the  contrary,  they 
convert  the  offender  into  a  suffering  patriot ; 
and  that  crime  which  would  have  beiii  abhor- 
red for  its  malignity,  and  tlie  contagion  of 
which  would  have  been  extinguished  by  a  legal 
prosecution,  unites  an  injured  nation  under  tlie 
boners  of  the  criminal,  to  protect  tlie  great 
rights  of  the  commimity,  which  in  his  person 
have  been  endangered.  * 

Tliese,  sir,  are  my  sentiments,  and  you  may 
make  what  use  of  them  you  please.  I  am  a 
yoalous  friend  to  a  reform  of  the  representation 
of  tlie  people  in  the  ])arlianicnts  of  both  king- 
doms, and  a  sinciTc  admirer  of  that  spirit  and 
perseverance  which  in  these  <lays,  wheii  every 
important  consideration  is  swallowed  up  in 
luxury  and  corruption,  has  so  eminently  dis- 
tinguished tiie  people  of  your  country.  The 
interests  <if  both  nations  are  in  my  opinion  the 
same ;  and  i  sincerely  hope  that  neithiT  ill-timed 
severity  on  the  part  of  government,  nor  preci- 
pitate measures  on  tlie  part  of  the  peopk;  of 
Ireland  may  disturb  that  harmony  between  the 
remaining  (mrts  of  the  empire,  wliicb  ought  to 
be  hekl  uKAre  sacred,  from  a  reflectwn  on  what 
has  been  lost  T.  Ebskine. 

In  1708,  Mr.  P^rry  addrtased  to  the  hoiL 
C  J.Fox  certain  Queries;  of  which  the  folbw- 
uf  MCoaiit  is  extnded  from  tbe  Mrnidiur 
CEraudei  1810. 


Question  nt  to  the  Practice  exercised 
Houics  if  Furliament  of  construing  1 
Contempt,  and punuhing  it  by  their  ob 

We  have  stated  what  in  the  genera 

IS  the  true  and  only  justification  of  the 

of  the  right  of  commitment  for  a 

arising  out  of  libel,  namely,  that  tl 

meaner  is  likely  to  liave  such  an  inst 

effetrt  as  an  obstruction,  or  of  such 

character  in  ]ioiut  of  force  as  to  mak> 

gcrous  to  wait  for  the  skiw  remedy  of 

ant!  therefore  the  lurcessity  of  the  cast 

the  summary  proceeding.     But  whc 

diuary  uibunais  are  in .  full  jurisdic 

where  the  constructive  contempt   o 

<raminittcd  out  of  doors  at  a  distance 

House  of  I'arUamcut,  a  mere  animad 

(insure  on  tlieir  proceedings,  accomf 

no  outrage,  distributed  by  no  mob  at 

nor  plucai-ded  within  the  pivcinct — tl 

nieaiior,  however  palpably  criminal, 

be  left  to  the  Courts  of  Justice.      I 

mo*  abk:  Debate,  on  the  motion  of  C< 

Piiipps,  af^rwards  Lonl  Mulgrave, 

for  taking  away  from  the  king's  Attc 

neral  the  dangei-ous  power  of  tihng  cr 

formations  ex- officio,  as  wdl  as  in 

debate  which  grew  out  of  it,  on  the  i 

Mr.   Seijcaut  Giynne,  tiie  opinion 

most  considerable  men  was,  tliat  tli 

right  ot  removing  obstruction  by  coi 

must  be  maintained  for  their  own  seen 

was  a  right  that  ought  only  to  be  used  i 

cases  ;  when  exerted  in  onlinury  inst; 

public  mind  must  revoh  at  the  harshiiet 

cessarily  depriving  the  subject  of  his  i 

right  to  trial  by  Jury.     This  wjls  he 

Diuuiing,  31r.  iV'eddcrburne,  sir  Geoi 

Mr.  Burke,  ^c.  6lc,  ;    and  inde(*d  ii 

the  sentiment  of  every  constitutional 

has  been  recently  recognised  in  tl 

When  31  r.  8tockdale  was  sent  by  the 

Coiiimoiis  to  trial  hi  tlie  court  of  Kiuj 

lor  a  HIkI,  which  they  calletl  a  brea 

vilegc,  the  ccmnsel   for  tlie  Defendi 

why  tlie  Hou.se  had  not  punishedthe  < 

themselves  ?  To  this  the  then  Attorue 

replied  in  these  words — 

"  My  Learned  Friend  says — W 
^*  the  liouse  of  Commons  theinselv 
<<  it  ? — Is  that  an  argument  to  be  ui 
*<  mouth  of  one  who  recommends  clei 
<*  Does  he  recommend  this  iron  haiKl 
'*  coming  down  upon  a  man  of  this 
*'  not  tomperately,  wisely,  judicious 
<*  tlie  common  law  of  tills  country  ; 
*<  let  him  be  dealt  with  according  to 
'«  iiion  law  ?  There  he  \i  ill  have  a  scr 
«<  impartial  trial :  there  he  will  have 
«( vantage  that  the  meanest  subject  i 
« « to. "  Trial  of  John  Stockdak 

This  has  ever  beeb  recommended 
considerate  man  abo,  because  it  is  w 
that  this  boarted  privilege  can  only  be 
without  coDtronl  against  their  own  m 
against  tlidr  own  oooititueots.  The  i 
^gerons  cue  of  a  oontempt  by  libd  < 


STATE  TRIALS,  32  Charles  II.  iSSO.-- Privilege  of  Parliament.        [go 


{peer  they  could  not  puniiih  by  summary 
nrtmcBti  Nay,  as  has  been  proved,  they 
4  be  widiont  remedy — iftheir  order  wus 
led  by  the  spirit  of  a  court  oi  justice ;  for 
ix  were  to  send  their  mace  for  a  judc^e,  as 
loose  of  liords  did  in  the  instance  ot  judge 
ieiry  in  1640,  would  he  come  When  they 

1798  we  accuroidatetl  a  volume  of  mate- 
oa  this  great  conKtiuitional  question. 
■Mi^  others  we  submitted  the  ibilowing 
in  on  the  case  Co  3Ir.  Fox,  whose  know- 
e  if  the  law  and  usage  of  parliaiuent  will 
Waed  by  all ;  and  when  his  high  notions 
k»  wttjjtct  are  remembered,  lus  opiuion  will 
■rfvidi  a  lively  interest: 
taoy  1.  ITiough  the  House  of  Lords,  as 
as  mf^'  court  of  justice,  have  the  power 
electing  their  proceedings  from  unlawful 
wsioB,  can  this  right  extend  t^  the  com- 
MK  for  the  misdemeanor  of  libi^l  P 

Has  the  House  of  Lords,  either  in  its 
aal  or  legislative  capacity,  any  power  of 
■ittBent  Ufyond  that  of  the  House  of  Com- 
as tke  lattcT  never  crommitting  for  a  time 
■a.  tior  imposing  a  tine  ? 
.  Ills  the  House  of  Lords,  in  fact,  any 
Ha  power  over  contempt,  or  breach  of 
ffcje  in  tlie  exercise  of  its  judicial  functions, 
I  in  its  legislative  cajtacity  P 
<  DkKi  not  the  principle  of  your  bill,  by 
ii  it  is  dedaretl  that  in  matter  of  libel,  tlie 
k  case  stiall  be  lefc  to  the  jury,  who  shall 
iMBioi;  a  verdict  of  (luilty  or  Not  Guilty 
sw,  extend  to  the  Houses  of  I'arliainent 
kfefl  as  lo  courts^so  as  to  do  away  all  sum- 
J  [-meecding  on  liliel,  under  the  coiistruc- 
t  H  lis  being  u  contempt  P 
i.  Cn  the  power  of  smnmary  commitment 

hfily  exercised,  or  at  least  justly  and 
^■aUr  is  precedent,  against  an  individual, 
B  Ifar  oiere  proof  of  his  being  the  proprietor 
ac««|ia|ier,  but  without  any  prool*  of  his 
vMge  «k'  the  matter  complained  of  P 

KuppoMng  the  right  of  commitment  to 
U  esn  the  House  of  Lords  couimit  an  in- 
U  for  any  cause,  as  for  breach  of  privi- 
,  lor  a  term  certain,  and  adjudge  hun  to 
a  fine? 

What  mode  of  redress  would,  in  your 
isB,  be  the  constitutional  course  for  lue  to 
K  in  thin  case  of  commitment  by  the 
K  of  Lordsi  on  the  constructive  contempt 

BBl  m 


Mr.  Fox  sent  the  following  Answer: 

•DttrSir, 

IphsnU  be  exticmely  ghid  to  be  in  any 

WviocnUe  to  you  upon  the  present  occa- 

|hA  1  cuHHit  think  my  opinion  on  a  case 

mtmtf  w  ef  any  value  in  comparison  with 

^'Wtternkmai  men  ;  especially  as  redress, 

Ml  he  had  in  oourta  of  kiw ;  for,  I 

VMCMUMt  think  that  in  the  present 

knp  there  is  any  chance,  even  the 

MimAter  House  of  Pariiament  listen- 

fttBg  tint  can  be  oftied  on  the  sub- 


ject. However,  I  will  endeavour  to  answer 
your  Queries — 

'M.  There  can  be  no  right  of  conmiitting 
but  for  contempt,  but  an  act  which  comes  pro- 
periy  under  the  description  of  a  contempt  is 
not  the  less  a  contempt  for  being  also  a  mis* 
demeanor.  Indeed  it  is  difficult  to  conceive  a 
contempt  which  would  not  be  a  misdemeanor. 

*'  2,  1  do  not  think  the  House  of  Lonls  in 
any  capacity  has  powers  of  conimitnieut  be- 
yond the  House  of  Commons  ;  but,  I  believe, 
such  powers  uf  commitment  have  been  exer- 
cised by  it,  and  I  fear  without  the  reproof  which 
such  cxerdse  ought  to  have  drawn  from  the 
Iluuse  of  Commons. 

"  3. 1  should  think  the  House  of  Lords  has 
no  more  poiver  in  its  judicial  than  in  its  legisla- 
tive character,  in  respect  to  bi  caches  of  privi- 
lege and  contempt^,  if  in  truth  it  can  be  pro- 
perly said  to  have  two  distinct  characters,  which 
1  doubt. 

''4.  My  hbel  bill  has  nothing  to  do  with  the 
jurisdiction  of  the  Houses  of  Pariiament.  Ita 
principle,  however  may  be  urged  as  an  argu- 
ineutto  induce  a  court  to  be  cautious  of  judg- 
ing libel  without  the  assistance  of  a  jury,  ex- 
cept in  cases  of  great  urgeucy. 

**  5.  1  shoidd  think  the  question  of  a  pro- 
prietor of  a  uc^vspaiKT  being  cTimuially  res- 
ponsible for  its  contents,  a  very  doubliui  one, 
and  indeed  I  should  strongly  incline  to  the  ne- 
gative; if  the  ])oiat  had  not,  as  1  conceive, 
been  often  determined  and  acquiesced  in. 

"  6.  I  believe  the  right  of  tlic  House  of 
Lords  to  tine,  stands  solely  u()on  practice,  and  I 
have  little  doubt  of  its  being  nu  usurpation  ;  as 
to  its  right  for  committing  tor  a  term,!  have 
given  my  opinion  in  my  answer  to  Query  2, 

'^7.  lhepi*o[>er  channel  for  redress  against 
the  House  of  Lords,  is  a  |iet(tion  to  tlie  House 
of  Commons ;  but  that  in  the  present  state  of 
things  cannot  be  thoii«rht  of.  U  hether  or  not 
there  (*an  l>e  a  civil  action  against  the  gaoler  for 
false  imprisonment,  is  a  <iuesiion  tor  profes- 
sional lauTcrs ;  and  ui)on  this  a  good  deal  of 
the  old  dispute  on  the  case  of  Ashby  and  White 
woiikl  coine  in  play  ;  witli  this  material  diffe- 
rence, that  the  objection,  which  was  ui^ged  in 
that  case  to  the  possibility  of  tlie  House  of 
Lords,  in  case  of  appeal,  becoming  judge  of 
the  privilege  of  the  1/ominoiis,  woiuil  lie  here 
as  strongly  (though  in  a  ditierent  view)  to  the 
House  of  Lords  becoming  by  appeal  judge  of 
their  o^vn  act. 

*'  I  have  now  answered  your  Queries  as  well 
as  I  can.  The  conduct  oi  the  House  of  Lords 
seems  to  have  been  very  harsh,  especially  aa 
the  paragraph  in  question,  I  understand  (mr  1 
have  not  seen  it)  to  be  of  that  sort  from  which 
your  paper  is  of  all  others  the  most  free.  Bui 
harsh  as  it  is,  I  do  not  know  that  it  is  contrary 
to  precedent,  or  otherwise  illegal,  than  with  re*' 
spect  to  the  term  and  the  tine,  and  I  do  not 
know  that  my  opinion  upon  these  lit^ds  is  tlmt 
of  any  other  person,  much  less  the  general  one. 
Every  court  appears  to  me  to  have  usurped 
powen  m  cases  of  contempc  beyond  the  ne* 


91]  SrATETBlAL&,3fCnAmLE5lLl6sa^^Pr0€ndimg9^gmimalLTtm^9ai 

m  the  cnuit ;  die  gnrtlam 


flf  the  dee,  waA  the  Home  of  I»nb  ' 
mor«thaoany  ochix,  poevfalj.  becauKtheteis  I 

iioappfalfrauil,ejEcie|ittopaHaaM!fit,ofvh^  .  haB  were  fftiified  that  thii  wis  right, 
they  make  a  P«t.  Bt  the  waj' it  isobiimble,    Pw>cttDW«  ff  the  Hocn  or  Comxox 
CbattheflcmjeOT  C>inziioafy  whiHiofallooiiiti  !  ccbxdsg  Flotde.* 

haxbcxntheiiiottiiioikvateinexeflrtfleorpower  i  i^/i«r    i  r^i^      i 

of  tfaM«ffirt,tt  the  court  whose  power  and  rvht  [Frvm  Ike  Oxfmd  lMbai€M.\ 

has  ofUmfst  bee&  caDta  in  questioD.    Mr.  £r-  Ifoaitfjr,  J^il  SO,  1691. 

«kin«:'«  nMe  ktter  ier?ii»  to  relale  more  to  There  k  deiiTeied  mto  Ae  Houae,  a 
ordinary  courtA  of  justibe  thui  to  the  Houses  or  Note  of  thenid  acandalooa  Hpeecbei 
ot'l'juiiaineta ;  but  even  in  die  caw  of  such  .'  against  the  FdigTanrc,  and  the  bdv  Elis 
oourtK,  if  a  man  fr#Te  to  write  oontamaciovuly  |  in  which  it  is  set  down,  that  one  filward 
ol'  i}u:  manner  in  which  a  judge  eave  judg-  '  a  gentleman  and  piisuiief  in  die  Fleet,  1 
ment,  1  Husper.t  be  w«nild  certainly  Ee  attarhed  wiOi  Dr.  Pennin^^toa  ooooeming  the  ] 
for  a  contempt ;  thifUjS^i  this  case  is  not  men-  i  Pn^^,  did  say,  m  a  soomfiil  and  ma 
tioneil    by   5lr.   Enkine,  nor  does  it  come,    manner,  *  That  Goodman  and  Goodwift 


perhaps,  strictly  within  the  line  of  his  argu-  i  '  gn^^e  were  now  turned  out  of  doors ; 
meat.  Now  it  this  be  so,  it  is  clearly  a  con-  '  tl»t  purpose ;  with  other  diamoeful  spe 
tempt  of  the  House  of  Lonb  to  animadvert  >  **  diat  he,  the  said  Floid,  had  as  much  ri 
eoDtuma'riousiy  on  the  speeches  of  its  mem-  j  the  kingdom  of  Bohemia,  as  die  Pabgrai 
hffTH,  and  perhaps  more  cteariy  than  in  the  other  ■  This  is  testified  by  one  Willis  to  be  i 
case,  inaiimuch  as  to  print  the  speeches  at  all  is  by  the  said  Edward  Floid,  a  Papist, 
a  brMicli  of  Privilege.  In  compliance  with  ^r  JUdtcin  Sundjft  saith.  That  we  wi 
vour  vi'i«»hm,  I  have  ;^ven  you  my  opinion  at  meddle  with  the  words  that  were  spcricen 
kri^c,  which,  howe^cT,  I  consider  or  very  lit-  i  Palsgprave's  right  to  the  kingdom  of  Boh 
tie  val  ic,  ami  indecfl  all  the  questions  of  par-  hut  only  with  the  scandalous  speechea  ai 
ticutar  and  dHiilc  I  usurpations  and  abases  ap-  j  graceful  words  used  by  Floid  against  th 
pear  m  me  lo  liecoine  of  little  moment,  at  a  -  -     -  - 

time  i^i;pfithe  whole  crmhtitutifTU  is  in  such  a 
depkirahie  sua(%  l'li«»  pmceedings  against  }'ou, 
lKuS|>e<-i  ifi  Ik*  only  a  bi'^ning,  of  a  persecu- 
tirm  a^Hfii-.t  t:i#>  liiiierty  of  the  press  in  general, 
and  a  part  ot  that  .system  of  terror  which  our 
rulers  aie  bo  fond  of.  C.  J.  Fox." 

For  inoie  n'spitting  this  matter,  see  the 
CoM^t  of  llarnardi:4U>ii  and  Soame,  ante,  vol.  6, 
1163  ;  of  SliirUfy  and  Fajjg,  aii/e,  vol.  C,  p. 
11^1,  anil  the  other  cases  there  mentioned. 

In  the  Lords'  Journal,  under  date  March  23, 


p.  1600,  It  appears  that  a  Cummittee  of  IVivi- 
legesn'iH»rUMl  their  opinion  that  the  Privilege 
of  tlie  House  ext«;ndc^l  to  exempt  a  peer's  ser- 
vant being  a  householder  Irom  service  of  pa- 
ro(*hial  ortiireN,  but  the  House  did  not  agree 
with  the  Couimittee. 

IHus  Case  may  be  found  to  lie  not  immaterial 
in  the  (^insiderutiou  of  Privilege  of  Parliament, 
and  of  the  coiuumhility  elsewhere  of  ques- 
tioiiM  reHiMMrting  such  alleged  IMvilege. 

Mem.  Ill  archbishop  Seeker's  Report, 
(inserted  in  Cobb.  Pari.  iJist.)  of  the  debate  in 
tlia  House  of  Lonis,  May  25,  174?,  upon  the 
second  rcailing  of  the  bill  for  indemnify hig  per- 
sons who  Khould  make  discoveries  oonoeming 
the  earl  of  Orfonl's  conduct,  it  is  related  that 
loni  iliuflwicke,  chancellor,  mentioned  the  fol- 
lowing Case,  which  1  do  not  recollect  to  have 
•ec«i  ill  print : 

**  la  Chanc<Ty,  in  the  Case  of  Sacheverel 
and  Pool,  a  man  published  an  advertisement 
that  he  would  give  liH)/.  lo  any  man  that  could 
flivc  evidence  in  relation  to  such  a  mamage. 
The  other  side  moved  the  court  upon  this  as 

.  *  As  to  the  commitment  of  Mr.  Penry  see 
11^  11a  grave's  opinion  in.  the  second  vonone    ' 
of  bii  Juodiiad  Aiigumenti  and  CoUeo^^      ,  * 


son  of  the  Palsgrave  and  his  lady. 

Edward  Floid  examined,  denieth,  T 
ever  had  any  speech  with  any  of  the  ] 
who  are  alled^eo  as  witnesses  against  hii 
one  Wilkt,  Coale,  or  Dr.  Pennington, 
ceming  the  Palsgrave  or  his  bdy ;  and 
That  there  wa.s  oue  Williams  and  a  ¥ 
present  at  the  time,  when  Dr.  Pennin^^ 
this  examinant  should  s|)eak  those  disgr 
words. 

Jiliiy  1. 

Dr.  P«naiii;^^ofi,  a  doctor  of  physic, 
mined  saith,  That  he  aud  Mr.  Edward 
having  a  conference  in  his  chamber,  th( 
Floid  told  this  examinant,  that  he  hean 
Prague  was  taken  by  the  emperor,  aw 
Goodman  Palsgrave  had  taken  his  heel 

*  Among  the  Harleian  manuscripts,  d 
a  collection  of  the  proceeding  in  this  ren 
blc  case,  by  sir  Harbottle  Gnmston.  Th 
appears  to  iiave  belong*jd  to  Robert  Hark 
terwards  Lord  Treasurer  and  earl  of  Oi 
who,  in  the  first  page,  has  written  his  ce 
of  these  proceedings,  as  follows. 

At  the  tim  of  the  Tide : 
'  The  following  collection  is  an  inatanoi 

*  hx  a  zeal  against  Popery  and  finr  one  h 

*  of  the  royu  family,  which  was  suppoi 
'  be  neglected  by  king  James,  and  conseq 
'  ly  in  opposition  to  him,  will  cany  | 

*  against  conunon  justice  and  humaniw. 
Jtt/y  14,  170S.  «  K.  : 

At  the  bottom : 

*  For  die  honour  of  EngUrimien  and  i 
'  of  human  nature,  it  were  to  be  hoped^ 

*  debates  were  not  truly  taken,  there  bn 
'  many  motkms  contrary  to  the  hm*  € 

land,  the  laws  of  Parliament,  and  puUh 
tioe.    ICHaRUT.*  Jufyt^tf 


run  away,  and  that  Goody  Pal8gra?e  was 
n  irirUuDtfT  ;  anil,  Uiis  examinant  wishing 
.  Iiiiuself  and  all  other  able  men  were 
nii  to  q^n  thithf^Ty  and  not  to  ret\im  till  they 
,  rtiici-med  her,  the  said  Floid  said,  tins 
aiiDADt  wan  a  fuol.  He  saith,  tliat  th<^se 
[^  wire  spoken  in  the  hearins^  of  Mrs. 
M^cun,  an  attorney's  wife  of  this  town, 
snitk.  thut  w  hen  these  wonls  were  spoken, 
r.  Fluid  ami  this  examinant  were  good 
ends,  and  that  he  went  at  tliat  time  to  Fluid's 
amber,  as  one  prisoner  to  \i.sit  another: 
Vtt  We  toU  tlie  Warden  of  the  Fleet  of  these 
rgnk  ibr  next  day  in  his  dining  chamber,  in 
of  Mr.  Pinehback  and  Mr.  Wil- 


■11 ;  and  that  six  days  after  the  Warden  came 
»dHi  examinant *s  lu'd- side,  and  desired  him 
lid  him  all  the  speeches  that  \u'vc  spoken 
r  the  said  Fluid  concerning  the  Palsgrave. 
Ie«iih,  that  Floid  spake  these  words  with  a 
fjfid  countenance. 

TW  Warden  tj'  tht  Ficet,  examined,  saith, 
IWi  k  first  moved  Dr.  Pennington  to  know 
hr  tnift  of  diese  speeches  iisod  by  Floid,  hav- 
ifaDdcrstood  of  it  from  a  servant  of  his  ;  and 
HI  Dr.  Penninston  did  never  acquaint  this 
CttBiMBt  with  the  said  speeches  of  Hoid,  till 
b  Wfast  nio^ed  him  of  it :  That  his  servant 
LenJK  Harris,  his  niece,  was  the  first  that  ever 
M  Um  of  it,  and  that  Dr.  Pennmgton  did  tell 
Vi  cnmiiBnt,  lie  had  written  a  letter  of  this 

Dr.  Fcnnimfiton  examined,  saith.  That  he 
U  homnr  a  Chronicle  of  the  Warden  of  the 
VIki,  to  ice  whether  Volti^  was  a  Saxon  or 
iUlbih  king ;  which  he  desired  to  know,  be- 
CHKif  a  conference  held  between  Floid  and 
kin:  ni  diat  he,  this  examinant,  did  then 
toFM  of  his  error  in  that  discourse, 
C  the  time  when  he  borrowed  the 
be  acquainted  the  Warden  of  the 
fhfl  vidi  the  speeches  made  by  the  said 
rail. 
Sr  Bimard  Cooke  saith,  Tliat  he  hatli 
lias  Floid  long  ;  and  that  he  is  a  per- 
FipHl,  and  a  barrister,  but  a  wicked 


STATE  TRIALS,  32  Charles  II.  l6S0.^Privilege  of  Pariiament.        [94 

grave  to  be  king  of  Bohemia.  And  tins  exa- 
minant  saith,  he  told  the  Warden  of  the  Fleet 
of  these  words,  and'  also  of  the  sjieeches  that 
were  spoken  to  Dr.  Pennington  r»y  Floid  :  the 
time  when  he  told  the  Warden  of  it  was  (as  hie 
remembercth)  about  tiie  13th  of  January  last. 

May  1.  p.  m.  Sir  Arthur  Inpu-.i  s;uth, 
That  the  committee  appointed  to  search  Floid 's 
trunks  and  pockets,  found  in  his  pockets  beads 
to  pray  on ;  and  Ihf'y  liave  found  divers  pi)pi8h 
books  and  beads  iii  Xwc  tiiink,  and  other  popish 
books  hidden  in  his  boil : — Tliat  Brou^hton,  a 
prisonei  lu  the  Fleet,  saith,  that  \)v.  Penning- 
ton did  tell  him,  since  Christmas,  that  Floid 
had  s[)oken  the  said  dis<jp*aceful  words  of  the 
Palsgfrave: — That  Mrs.  Broughtou  said,  that 
she  heard  Floid  s)>eak  of  the  Palsgrave,  but 
dotli  not  remember  what  he  said,  biecause  she 
was  then  looking  out  of  the  window  to  see 
some  play  at  bowls :  That  one  Hardiman,  a 
poor  man'  that  was  wont  to  help  Floid,  make 
Iiis  bed  and  do  him  such  like  service,  did  hear 
Floid  lauffh  heartily,  when  one  calle<l  Fryer 
told  him,  that  Prague  was  taken  by  the  em- 
pemr's  forces ;  and  that  then  Floid  said  to 
Fr^-er,  What  will  thp  lad  do  now?  now  Bess 
must  come  home  asfain  to  her  father.  And 
tliat  tlie  said  Hardiman  said,  he  also  heani  the 
said  Floid  sneak  those  disgraceful  words  of 
Goodman  Palsgrave  and  GoodyPalsgrave,wheii 
the  said  Fryer  was  with  him. 

Ed.  Floid,  being'  on  his  knee  at  the  bar  exa* 
mined,  and  charged  with  all  the  proofs  before- 
mentioned,  saith,  That  he  knoweth  not  Har- 
diman by  his  name ;  and  saith,  that  no  maa 
ever  used  to  make  his  bed  in  the  Fleet,  but  onhf 
a  poor  woman.  He  saith  also,  that  there  n 
one  Dr.  Fryer  that  useth  sometimes  to  come  to 
him,  but  denietli  all  the  words  wherewith  he  h 
charged,  * 

Mr.  Hackodl  saith,  That  Lettice  Harris 
saitli,  that  she  did  hear  Floid  speak  thosa 
words  within  this  half  year,  viz.  Goodman 
Palsgrave  and  Goo<iy  Palsgrave;  but  saith, 
that  she  did  never  tell  the  warden  of  the  Fleet 
of  it. 

Sir  Kobcri  Phillips  saith,  tliere  are  in  tbw 
business  three  things  to  be  considered ;  1.  The 
offence;    Q.  The  ])ersons  offende«l ;    3.  The 

Eunuihment  to  be  inflictoil  on  the  ofTeuiler. 
*or  the  first  that  Floid  hath  spoken  derogatory 
words  of  the  king's  children,  in  dmling 
them  by  the  name  of  (loodman  and  Goody 
Pblsgrave:  For  the  second,  tliat  we  shonra 
remember  and  consider  in  our  sentence^ 
that  the  iiersons,  whom  he  thus  deroffited 
and  vilifie<i,  arc  tlic  hopeful  children  or  our 


Mt,T%amat  Crnrf  saith,  That,  if  we  arccarc- 
U  U  pmish  such  as  speak  scandalous  s])eeches 
tf  mign  princes,  then  ought  we  much  more 
hke  severe  to  those  who  s^iak  contemptuous 
^ii  of  our  own  princes. 
Dr.  in//ij  examined,  saith,  That  Dr.  Pen- 
told  this  examinant  of  those  speeches 
d'a,  and  thf*n  told  this  examinant  also, 
\kt  had  told  the  Wanlen  of  the  Fleet  of 
words  ;  and  ijiat  one  FruncLs  Allured 
K  Jo.  Broiighton  and  his  wife  can  say 
if  Fknd's  rejoicing  at  the  ill  fortune  of 
ive  and  his  lady  ;  and  that  one 
■  will  testifVt  tliat  Floid  hath  lieen 
ny,  and  ilrioking  of  healths,  vhcuever 
hath  come  from  Pratrue. 
,  bachelor  of  divinity,  eximiined, 
Floid  told  this  examinant,  that 
C  or  any  nobleman  of  £ngland  had  as 
dfktto  be  king  of  Wales,  as  the  Pals- 


I 


prince ;  a  laily  lianlly  to  Ik;  eunallcd,  uol  to  be 
excelled  :  I'hcthinl  consideration  is  tlie  punish- 
ment ;  wherein  he  would  have  us  not  to  foiget 
tliat  the  party  to  lie  nuiiishfd  is  a  constant 
knave  (for  aft  he  hath  [>een  known  to  be  by 
many  memlMm*  of  this  House  this  many  years) 
and  a  constant  and  malicious  fuipist:  Tliat, 
since  his  oflence  hatli  been  without  limitation. 
Ills  punishment  might  likewise  be  without  pro- 
porUou:^Thai  luj  would  have  faiin  ride^  wil]jL 


95]  STATE  TRIALS,  32  Charles  II.  ifis 

hb  face  to  a  Iiomc'i;  tail,  fnmi  Wcatminiitcr  ti> 
IheTowiT,  with  ftjiapn'  iii  liis  hat,  uhntHn 
ahuuldbewriltpn,  ".A  t'oiiish  Wretrh  llmtliath 
"  niahtioiislj'  Miitulalizf-d  lib  innicKty's  rhil- 
"  dren  i"  amt  thnt  at  the  Ttiwcr  lie  should  ht' 
ImlgH  iit  littV  eaw,  uitli  as  much  |iain  as  he 
shaT)  Iw  nble  tii  pniliirr,  uiihiml  Iihs  or  (lBDtn.'r 
ul' his  lift-. 

Sir  TAo.  Jton-r  niovt^h,  ihiil,  aincG  he  wan 
committed  to  t)ie  FIn-t  liy  llic  LortUiif  tlic 
Council,  hewiHiM  Iihvc  lu  wnil  tn  the  I^rcN, 
and  renin'  willt  tltt^ni  limi-hing  tlic  jiunishint-iit 

8tr  livdley  Digi  intvhi  Jiavc  us  firsl  to  uc- 

Siaint  tlic  L(>nlii  n'tih  tliii  tiuHini^  atiil  make 
no  liattiTK  in  th"  h"ii'inr  of  puuiiliing  mi  i  ile 
«mI  nmlnlirul  a  Kutiit-t-t. 

Sir  Gfafge  JlfurcMiiih,  that  <m  cvtraonlinar)' 
causes  we  iitnv  enluT^t-  :.rtii  innkr  |iteciilenlH ; 
but  (iMtrc-th,  that,  by  I'^tctidlii^  uur  jMnvei*  in 
tirM,  we  take  licij  that  wrdo  not  iin;iiiihc<-tlwl 
of  the  Lords.  Hu  uoiild  have  Fluid  whipped 
from  hence  In  the  ]iiace  wbtoct-  ho  came,  and 
would  have  him  so  left  to  the  LorAi  tnr  lailhcr 
punidimenl. 

Mr.  Rawniertift  nould  have  him  fmrd 
1,000/.  and  so  liis   curporaj   piinishnDeril  to  be 

Sa  i'rancii  Stymour  woiiM  liave  us  prniit^h 
Um  u  tmr  as  the  power  of  our  Iloiise  will  e\. 
tend ;  fur  lie  nnuid  have  us  now,  if  wc  would 
at  any  time.  Bland  on  the  pmileffe  and  power 
of  our  House.  He  would  have  him  (^  ftnm 
hence  to  the  Tiiwer  at  a  cart's  tail,  wiih  his 
doublet  olf,  his  beads  about  his  neck,  aud 
■hai  he  should  have  so  many  loslie^  m  lie  haih 

Mr.  Salter  would  hare  him  ride  mi  a  horae 
{with  his  fa«  to  the  hoiae'ij  tail)  to  the  Tower, 
and  be  whipt,  nnd  thereout  in  tiUle  ease. 

Sir  Eds-ard  Cilei  n-iiiild  bare  him  stand  in 
the  pillory  here  at  Wwlminsier,  two  ar  thrci- 
hours,  lllen  lo  be  here  wliiw  with  as  manv 
lasher  as  he  hath  beads,  and  I  u  be  so  likewise 
whipt  at  the  coHrt  ([ate,  and  at  the  Temple, 
and  would  liB»e  him  nvtimmitted  In  the  Fleet,  ftr 
hewwuld  not  winb  any  man  In  cortieintoatrnrse 
pnsoa. 

Sir  T/iamai  f^lmmmt  UoWv  uwvcdi,  that 
we  should  iMonunit  him  tii  iIm  KInri,  ihetif  ii> 
brki^  in  tfmn   ii  -  '         '   hm   would 

leihepajB-- 


\~Prottedingi  again 

head  with  a  T  or  a  D, 
lontrtie,  aud  anteeth  w 
and  sii-  Fruuebi  Heymou 

Sir  Otorft  Guiing 
cars,  cm!  tou^ic  cut 
maiiyKlagn.'sasLehalhl 
Ktagv  with  his  fece  lo  il 
tail  in  his  hand,  aiul  at 
a  bead ;  and  thus  to  be  i 
(hereto  behan){ed. 

Mr  Jo.  Jephuin  aaith, 
that  a  committee  mi|^t 
of  the  heaiien  |<un]sh 
spoken  of;    but,   lieca 


nctln.'dlu 


litndtd  a^cninM  tlie  nmla 
no  (ess  than  to  tlie  Tu 
him  hare  a  pnj'cr  writi 
his  iiffcncc. 

'■At.  Jo.  FiHf/i  »ailh, 
tcsliinnny  on  oaih  B|ra 
liaie  in  put  aiij  rorjiu 
bnt  all  tlio  itcnomininus  p 

tUTJchnSlianfifbtii/i 
iicier  a  precedent  made 
and  he  hopelh  i 

ami  therefbre  wouhl  hai 
tlin>iinhtiicton<pu.'.  am 

Kir  Jo.  Waltert  saitli 
lo  onr  adt'ersarics,  am 
have  us  punish  him  wi 
bdt  wmild  have  all  hi> 
lh<:PaIs(TaT.-,i;irtol 
cover  the  I*3latinBti' ; 
wliipt  for  liitig'hin;!  a' 
by  to  make  him  ilii 
endure  all  tlic  i^e 


I  by 


>rbb>.', 


ndu) 


A'/ord  ^y 
canse  he  hath  laix 
g:o  as  far  for  tlie  p 
cedent-i  will   w.v 
ai,'r«.tli  nitli  sir 

Sir   Kdnin    .' 
which  shall  bf 
allChrii>tenil<>' 
is  the  ipDuntl  • 
doio,  which 
would  not  hnv 
Lonla,  who  ai 
of  Floiri  thith 
pHniahinent   ' 
wereioinaki 
■fa-  Jo.  »ah 
saving  hi*  w' 
impriper  fit 
he  were  de-^ 

Sir  Fra» 


STATE  TRIALS,  3S  Charles  TI.  1 6S0.^Privikge  of  ParliamikL        [g8 


i.  MamulagMt  nith,  he  thinketh  we 
iciuuif « the  kingf*s  prisoner  to  another 
nd  thb  Floid  being'  by  the  Loids  of 
cfl  eommitted  to  the  Fleet,  we  may 
re  him  to  the  Tower, 
ntered  and  adjudged,  Tliat  Ed.  Floid 
iftimied  this  night  to  the  Fleet,  there 
lohon's  ward,  and  to-morrow  morning 
Westminster  bare  ridged  on  a  horse's 
b  his  face  to  the  horse's  tail,  and  the 
hand,  and  to  stand  at  Westminster  on 
jr,  from  9  to  11  of  the  clock  ;  then  to 
le  same  manner  to  the  Old  Exchange, 
to  Itand  two  hours  more  in  the  pillory; 
Friday  to  ride  in  the  same  manner  to 
e,  i&d  there  to  stand  in  the  pillory 
iTtbe  clock  in  the  morning  till  12,  and 
de  lack  thence  in  the  same  manner  to 
t ;  io  htive  a  paper  in  his  hat  at  every 
taB  places,  and  another  paper  on  the 
bt  inscription  whereof  shaU  be  these 
For  fi&lse,  malicious,  and  despiteful 
H  against  the  king's  daughter  and  her 
1;'  to  be  fined  1,000/.  to  the  king: 
KQtence  shall  be  seen  to  be  executed 
lerilTs  of  London  and  Middlesex,  and 
farmer  committee  shall  draw  a  warrant 
irpose,  which  shall  be  subscribed  by 


ancii  Kenniston  movcth,  that,  in  re- 
t  Ffoid's  son  hath  married  a  gentle- 
agfater  of  worth,  that  his  grandchil- 
r  wit  feel  the  weight  of  the  fine, 
^'/i/for  (f  would  have  the  Warden  of  tlie 
cad  the  horse,  as  Flnid  rideth. 
ranai  Went  north  desireth,  that  a  com- 
laybe  appointed  to  collect  the  reasons 
V  censure  (because  there  wiU  be  many 
sttcres  on  the  same)  that  it  may  re- 
ar to  posterity. 

ffdRvd,  and  a  committee  appointed  to 
i  the  proofs,  testimonies,  causes,  and 
if  diis  Censure,  and  to  present  it  to  the 


Sentence  was  thus  agreed  on,  the 
id  was  called  into  the  House,  and  on 
at  the  bar  heard  Judgment  pronounced 
ipeaker. 

HTarden  of  the  Fleet  is  commanded  by 
■e  to  put  FkMd  in  Bolton's  ward,  and  to 
ind  attend  him  to  the  sheriffs  of  London 
kllesex,  till  the  sentence  be  accordingly 
d  on  him. 

JIfsry   fi. 

ChnoeBor  of  the  Exchequer  dellvereth 

Kfrem  his  majesty  ;  who  hath  taken 
Nioe  of  what  n-as  flone  liere  yester- 
That  he  gives  this  (hiusethanks 
of  a  king  and  of  a  father  ;  and 
b  dnire,  that  our  zeal  to  him 
nport  us  to  inconvenicncies: — That 
■re  lis  fint  query,  whether  tlie 
h»  Rouse  can  warrant  lui  or  give  us 
■taee  one  who  is  no  member,  nor 
IhI  this  House,  nor  any  member 
■f  ^laji  whether  we  con  or  will 


sentence  a  denying  party,  other  than  on  oath  : 
— That  the  Lords  iiid  desire  sir  Henrj'  Yelver- 
ton,  because  he  was  the  king's  prisoner,  and 
would  not  meddle  with  him  tUI  liis  majesty  had 
commanded  him  to  be  delivered  to  them  ;  and 
his  majesty  would  have  us  to  consider  wliether 
we  wiU  not  shew  the  like  respect  to  hismajes^, 
Floyd  beuig  his  prisoner,  as  standing  commit- 
ted by  his  council.  He  would  have  us  leave 
this  to  him,  and  he  will  be  careful  to  punish 
Floyd  according  to  the  greatness  of  his  fault. 

The  Master  of  the  Wards  drlivcreth  a  record 
from  the  kin^,  which  his  *  niajesty  commanded 
him  to  acquaint  this  House  withal  ;  and  saith, 
that  the  kiuc'  saith,  that  he  will,  on  ^iew,  con- 
firm what  Pri\  ilcges  we  have,  and  would  have 
us  rest  assured  of  it. 

The  record  sent  by  the  king  goes  somewhat 
to  this  purpose. 

*  Rotulum  parliament!  1  H.  4.  Que  les 
'  Commons  ne  snyent  point  parties  aux  juge- 

*  mcnts  ;  que  le  jiigement  appartient  seulemcnt 
'  aux  seigneurs,  ou  seulement  au  roy  mesme, 
'  excepte  ou  le  roy  leur  donne  speciallement 

*  authority.' 

Mr.  Atfnrd  desireth,  that,  since  our  ship 
hath  touched  on  a  rock,  we  may  come  on 
clear :  That  there  are  precedents  where  the 
king  hadi  pardoned  the  party,  whom  the 
Houses  of  parliament  have  judged  ;  and  tliat 
he  wisheth  nis  majesty  would  do  so  in  this  ; 
for  that  it  is  expected  that  othcmise  oiir  sen- 
tence should  be  execnted. 

Mr.  Noi/e  saith,  tliat  there  is  no  doubt,  but 
that  the  king  may  stay  execution  of  judgment 
gfiven  ui  any  court :  'That,  in  the  case  of  La- 
timer, the  king  did  pardon  the  offender  ai^er 
judgment  given  by  the  court  of  parliament. 
He  would  mat  we  should  send  a  Hupersedeas 
for  the  stay  of  judgment,  with  this  reason  in  it^ 
because  it  hath  pleased  the  king  to  spare  the 
execution  of  the  judgment  we  guvc.  He  saith, 
that  we  may  judge  our  members,  or  one  that 
'  ofllends  acainst  this  House,  or  a  memlier  of  it ; 
but  in  other  cases,  and  of  other  persons,  he 
thinketh  it  bek)ngeth  to  the  Lords  ;  and  shall 
be  of  that  opinion,  till  he  secth  !:ome  precedent 
to  the  contrary  :  That,  since  we  have  given 
judgment,  he  would  have  us  appoint  a  commit* 
tee  to  see,  whether  we  liave  done  it  justly  or  no. 

Sir  Henry  Poole  saith,  that  he  liath  heard, 
that  we  and  the  Lords  did  sit  all  in  one  house  toge- 
ther, and  then  wc  did  give  juilgiiicut  with  them, 
He  desireth  a  committee  may  \w  cppoiiited  to 
seek  forth  precedents  fur  the  same ;  for,  if 
we  were  once  joine<l  with  the  Lords,  and  liave 
given  iurlgment  with  tliem,  then  ho  would  have 
us  seek  how  wc  parted  wiih  that  po^er. 

Mr.  JIackKell  won\i\  not  have  a  committee 
appointerl  to  examine  what  wc  have  done* ;  for 
he  hath  been  a  diligent  searcher  for  precedents 
in  this  kind,  ond  can  find  none  ;  but  he  would 
have  us  .Hcnd  to  the  sheriffs  presently,  by  an 
order  of  tliis  Housfv  that  we  will,  that,  for 
.cnu9esbcst  knowji  to  ourselves,  they  should 
forbear  the  execution  of  tb<\t  judgment  fill  they 
hear  further  from  us. 
H 


99]  STATE  TRIALS,  32Charle8  n.  l€SO.—Pro€eeding$agamii  ILTiM] 


any  part  of  it  would  but  lay  a  s 
juogiufint  of  the  House;  and  t 
would  have  us  send  to  thekin^,  and 
since  we  have  been  a  dutiful  Pai 
would  be  pleased  to  confirm  the  S 
have  given. 

Jlffly  2,  p.  m. 

It  is  agreed,  by  question,  that  tl 
accomuanied  witfi  some  of  this  Hor 
to  the  Kifi^  with  a  Message  concen 
sincss  of  Fluid. 

3Ii-.  A^n/f  woidd,  that  we  shoi 
majesty  full  Answer  to  the  Kecon 
should*sicfnify  to  bis  majesty,  wh 
done  in  thii»  |>articiilar ;  but,  ibr  th 
his  majesty's  queries,  touching  ilu 
of  this  House,  to  acquaint  his  lu: 
the  Sentence  beiuff  exc'cuted,  Me  % 
convenient  speed,  labour  to  «itisfy 
by  precedents,  in  all  the  rest  of  the  < 

Sir  Ktlvard  yiouHtague  saith, 
ancient  course  of  Pariiament  we  n 
no  warrant  for  to  j  point  what  number  shall  go  in  a 


Sir  Kd,  Sandt^t  would  have  present  answer 
given  to  tlie  Shcriflfs,  as  Mr.  Hackwril  spake ; 
(iutl  that  in  the  afternoon  we  should  acquaint 
tho  fjords  with  what  we  hnvc  done. 

8ir  Edw.  Omke  wisliHli,  that  his  ton^ie 
may  cleave  to  the  roof  of  hLs  mouth,  that  saith, 
tills  House  is  no  couit  of  record  ;  and  he  that 
!:nith  ihiit  House  hath  no  ]H>wer  of  judicature, 
uudcrstnuds  not  liiniM'lf :  for,  thougik  we  have 
not  such  pitwer  in  idl  tiling,  yet  have  we 
power  of  judicial  un*  iu  some  things,  and  there- 
I'l.re  it  U  a  court  of  reconl.  TIic  RinsrVbench 
can  nie<ldle  with  no  rtnd  actions,  nor  the  Com- 
inon  IHeas  witli  any  business  concerning  tlie 
cniwn,  and  yet  are'  they  courts  of  record : 
That  no  liU;rty  can  1m*  taken  from  any  court, 
hill  by  ai't  (»f  pnrlmnient ;  ami  this  record  sent 
I  tlh(4'  hy  the  king  i<  no  a^t  of  imrliament,  and 
t!icn»forc  nuinot  pi\;iudii*e  our  iilH*rty  :  •  MuUi 
'  tmiha,  ivtuo  omnia  nont  :*  That  Ke  knoweth 
thai  this  Is  11  court  of  roi*onl,  or  else  all  tiie 

i«o\ierand  IllM^rty  oftliis  House  were overthrov.n. 
[]c  Mould  ha^c  no  suprrsfdeut  to  be  sent  to 
the  shci-ttT,  btvause  he  hath  nc 

SiH'  the  e\cHnittoi>  of  the  s«nitcnce  nn  Floid  ;  but  i  the  king,  nor  when,  norlto  ^hat 
\i\i\\V\  have  a  nics!«^  sent  bv  ntvnl  of  mouth.  '  those  t£ings  always  stand  in  hi 
iliui  wo  Mill  span'  tlio  shenrl'^s  attendance  till    pleasure  to  appoint.* 
another  tinu\  m  hen  they  shall  have  further        It  is  orderetl.  That  all  those  of  t 
HAntiiiir.  who  are  in  our  House,  shall  go  t 

1 1  IN  (»nUMv>«l  acconlingly.  and  a  Messagte  by  ,  to  signify  to  hi&  ma)esty,  that  ne 
wi^l  ol*  nunuh  is  amu  to  the  sheriffs  by  our  ,  all  this  Aoust*  with  theSpeaker  ma 
urduT  («r  siTJcant.    that    we  discharge  their  '  majesty:  or.  if  not  all  of  u«,  then 
;iiic!iilMm>\    till  Mc  shall  gi^c  them  further  -  his  majesty  w  ill  appoiut,  ar.d  at  tl 
w.irniiur<  platv  his  maK'>;y  «4)ali  sol  down. 

Sir  K  ^'t  r'.a^j'«movoih  that  since  we  ha^e  !  'Hie  Mat i"' of  tKe  Wurd*  wou 
i:i»cn  li^iiuHmy  *it*  our  dui:c«  to  the  kingmoiv  Mt'ssaiiv.  uliich  wt  send  by  the 
than  an\  pnxxsk^it  d^Kh  shrw  of  the  like  to  the  king,  to  1^\  dial  our  love  an 
au\  kii^r*  he  thiuk«Hh  ii  i:\h^  that  mc  beseech  tliegniind  of  oiu- juilgiuent ;  and 
S.s  nMK«i\,  on  ftt  gxvxl  an  oiv^siim.  to  give  desire  his  uuk^iy  to  deal  with  us 
1^  lear«*  lo  create  thi<  px\v^\li.^t.  that  our  jud^-  hoivui :  b.^t  bo  ^tould  havc  us  tirs 
ii;ou;  ami  seo!dK>e'  may  ut«C  he  9can«'.ali/cU.  s^n r  Co  th«u  V^'^r  it  KcvotJ  that ! 

Sir  h,i  M*m:,:Kfir  MO\tM  ni^  lia\e  us  to  g»  It  is  on^i  r.«!.  vml  a  t'ommitlL-e  ; 
t.^  '.he  Ia't^U:  It  is  u«^  piviudi.v  for  us  to  sia\  ^.'  i^:t^;.;'.y  !.^  unvr  the  ^lessagc 
k'l  <r.\tvuikHi :  am)  thcr^iinv  he  vrouM  ha%e  u*  SjH>Akor  shall  di "  \  t  r  i>  the  king, 
^i".  (ilrtV^ncvl>f  what  »e  haic  d^we.an^l  iv^nvun-  Mr.  S-v*''.\.  i  r\*;ji-.n«.th  the  kii 
tA;i^  «Hir  lutiK^nirtii  and  :i«mteuiV^  k>  fnuH*  a  laU  tc»  the  Mcsso^  .  lii^c  ihe  kir^g  i« 
ti>lhise.*ftci«  aad  ti^ds^^iaich  iho  sauio  Miih  all  pkr.s«xl.  ihs.:  *i  :!.e  Ht.'-J6e,  accon: 
ailifJiiMM  .  ihc  S^«-Aker.  <hui:  o  me  h>  speak  v 

Jir.  iVfwv saiih.  that  «Y  dix-liue  i\\^u  whai  mwiv'vi.v.^jv^ua:  um*  Ccitsure  gi 
vs  lave  «liMe«  il'  «e  shvogihee.  ii  b\  a  Nill.  H^hsso  ««&  Yr>A.  ii\  tl:e  atkx&oou  at 

Hr.  j^4irts«v  «vuM  ka««-  us  c^t  to  the  kitv    ia  ^^  hail  ai  \\  ii.^;:ball 
mh  tlndfei  Av  hw  ew«.  and  io*Vt  his  maie«y  •  ^w     , 

be  mr^fmmu  i  with  the  waswas  t^'  our  jwian>Httf,  '*      •  -^  *' 

mmI  to  Abmit  hia  qm^mct  io  \vcinnu  it.     He       IWsuKtfasxv  i^'iLe  Message  to 
n\inf(  a  bilL  hMi  ihmks  a  wJI  Se*    Vv  dw*  S^  Aer.  trvoi  this.  Hvuse  t 
eilAMft.  Yo  M\^-v:4  to  t.2^  mj^ea4^-.  first, 

Mr.  AacI  wUk  thtt  it  b«di  bv^ta  nrMh«0    ife^u*:s  twv  ha  ctsl-kc^  e-vpRssims 
>  tW  Kiiy%  HmcK  that  a  Uab«<w  iV^cycs    ssi:x:.^3c  <*'  '>^f  «i&j;iv«s:^«i  aui  a#« 
leMBlMl  i»  iwume  a  ipnAWM'^MK*--     S:sikTw  «'xv-{i  «».ls  ^\  U.^  Ho« 
b^UwWeiAsvf^OMmta     lie  wwu^i    lVvi«  ib<  UMiicucs  zv^l^  of  hi 
w  ft»  hwrrcb  hw  M^pnex  t»  owwWtwx-    oitXsvB     T.*  9^w  its  nibMa3-.  thi 
_,  _  *  biwi»^«i^  il^t  ,^|||.  j^k,|g«wc;    sH?  ^i^ez^  o«"  lie  Hmjat  to  excMd 

MMMe iwn  W  |^  m  ex««%K»Mk  saiice  u^i"    s»c  ?.»  w^  *?>  r^jr-ier  jvwtr  so  ou 
ImmjAm  MR«I*  tWK  asal  n^  W w^c^.«     ch^^^.  «v  «!:  »k  £:^«d»  tke  jur 
tt^^^^^'^'sv^ ..i..^  *<i:w^H.v3«.  \«t  »t  bi^uebST  she 

«e Ilfewa»«v    «oi  >WM  ;ia  .:v:« .  M;i.2K s  jib* m 


It  plaaed 


101]       STATE  TRIALS,  32  Charles  II.  iGSO^—Prhikge  of  ParlioMeni.       [102 

nishment :  if  our  precedents  be  good,  and  done 
I  in  a  [icafxiuble  time,  tbey  are  lawful ;  biTt 
j  reason  (wlierebj^  we  say  we  will  sbew  tbat  we 
have  power  to  judpfe  the  said  cause)  hath  so 
great  a  Utitude,  as  he  knoweth  not  how  to  an- 
swer it ;  for  it  is  both  his  opinion  and  ours,  if 
judg^  fro  to  reason,  and  leave  point  of  law, 
they  wander.  Hciivould  haTC  us  seek  forth 
precedents  to  shew  the  same :  tliat  his  ma- 
jesty even  now  received  a  Petition  from  Floid, 
who  confesseth  the  deed,  but  yet  would  not 
have  us  condemn  a  denying  man,  but  by  wit- 
nesses on  oath.  In  the  mean  time  (till  we  have 
presented  to  his  majesty  a  Petition  of  what  we 
desire)  his  majesty  will  see  such  punishment 
uiilicted  on  hun  as  we  sliall  think  enough. 

May  4. 

Mr.  Secretary  delivereth  a  Message  from  his 
majesty.  Tbat  his  majesty,  as  soon*  as  w« 
were  yesterday  parted  from  him,  gave  order  to 
his  learned  council,  to  see  whether  Floid  had 
confessed  the  fault  (ibr  which  this  House  sen- 
tenced him)  or  no ;  and  the  Petition  which  was 
delivered  yesterday  to  tlie  kinfic,  (and  which  his 
roiyest)^  yesterday  mentioned)  was  not  from 
Floid  himself,  but  fit»m  Fluid's  son  :  but  Floid 
himself  at:,solutely  denieth  the  words,  and  there- 
fore his  miyesty  will  send  it  and  hiui  to  the 
Loi'tls  to-morrow,  that  the  witnesses  against  him 
may  be  there  examuied  on  their  oallis,  anil  thr.t 
Floid  may  be  punished  as  severely,  or  more, 
than  we  aii[judged  him  to  be :  that*  his  majcsry 
expects  our  Answer,  touching  our  sending  him 
a  petition,  and  concerning  our  miHldiing  with 
Floid,  he  bi'ing  his  majesty's  prisoner. 

Mr.  Solicilor  saith,  that  he  and  Mr.  Attorney 
did,  by  the  king's  command,  examine  Floid, 
who  (feuieth  absolutely  the  wonls  for  which  he 
is  here  sentenced ;  and  the  said  Floid  dotli 
also  deny  another  business  wliich  Mr.  Attor- 
ney did  put  him  in  mind  oi\  and  had  under 
the  saiil  Floid 's  owii  hand  :  that  the  king  f  aid 
he  did  the  less  beheve  Fl(»id  for  his  denying 
that  other  business ;  and  that  his  majesty  saidy 
that,  if  we  can  find  out  a  better  way  for  this 
business  of  Floid  than  to  go  to  the  Lords,  1  e 
sliall  Uke  well  of  it,  but  would  not  have  us  con« 
demn  a  denying  man  without  witnesses  on 
oath. 

SSir  Robert  Phillips  saith,  that  we  censured 
Floid  out  of  our  duty  and  respect  to  the  king 
and  his  cliildren,  wherein  we  shewed  our  lo\e 
and  our  duty  ;  but  we  are  untbrtuuate. 

Mr.  Alford  saiih,  he  will  nc\'cr  consent  tiiat 
we  should  send  this  to  the  Lords,  for  that 
would  lie  a  scrandal  to  our  judgment ;  and  that, 
if  we  sit  down  tlmt  tlie  Lords  may  have  it  out 
of  our  hands,  we  are  umvorthy  ot  being  parlia- 
ment men.  He  saith,  he  must  say  thus  nmch, 
though  he  never  speak  more. 

8u-  Dudieu  Di^i  saith,  that  we  have  done 
hei-ein  otir  best;  and,  though  we  have  not 
done  such  as  may  be  e\(K:utetl,  we  ha%e  yet 
shewn  ourselves  gtKid  sultjtrts  ;  and  thcret<»rfs 
he  wouUt  have  us  go  on  with  what  may  be 
good  for  the  commonwealth. 


To  desire  humbly,  that  his  majesty  will 
to  streDgtheu  and  countenance  this 
siDoe  the  ground  and  cause  of  it  M-as 
■or  fervent  desire  to  express  our  humble  an<l 
kuty  aficctwDS  to  his  majesty  and  his  chil- 
cen. 

Mr.  S^retary  saith,  that  the  king  hath  in 
ihii  partkuUr  made  a  question  of  the  power  of 
•or  Hook;  and  ibr  us  to  stand  u^Mn  this 
fvvfr  of  ours,  be  ho!deth  it  untit,  unless  we 
wot  belter  prorided  with  precedents  than  he 
lUeifa  we  can  have  ;  for,  if  the  king  should 
kan  il,  we  are  for  e%'er  barred. 

nc  Atsj'rr  of  the  H^ar/^t  saith,  that  in  this 
Mkh  we  have  to  deal  with  the  Lords  as  well 
■  ifcekiDg ;  for  this  8entence  of  ours  doth 
1  tMr  lordships  and  the  privileges  of 
HooM :  That  our  desire  to  have  our  Sen- 
confirmed,  is  in  a  manner  to  desire  to 
a  new  precedent :  He  would  have  us  to 
itte  wotdkk  a  care  to  satisfy  all,  as  that  the 
^Mk  wtKf  not  daim  that  their  privileges  are 
ilBHtod  in  this  business,  whicn,  they  may 
fnhifs  mjj  appertained  to  them. 

Mr.  HmckweU  saith,  tliot  the  precedent  sent 
li«ky  fak  majesty  doth  not  bind  us  any  more 
te  k  doth  the  Lords  ;  for  in  it  is  expressed, 
Lords  could  not  judge  alone,  which  the 
_  practice  since  sheweth  to  be  otlier- 
;  Inf  we  cannot  shew  any  practice  that  we 
hnt  ikHie  ghen  judgment  in  the  like  case  to 
wiof  Fhiid. 

Sr  &.  Mount agve  saith,  that  the  intention 
tf  the  Committee,  wlw  penned  this  Message, 
VM  niher  to  rely  on  the  king's  favour,  than  to 
ft^MAJustilication  of  what  we  have  done. 
Sf  EArard  C**oke.  saith,  tliat,  by  the  Paper 
Mlliqi  by  the  king,  it  is  set  down,  that  we 
iMtia  ytwer  of  judicature ;  but  every  man 
^'  '  that  we  have  judged  those  of  our 
',  ami  ot  Iters  also  tor  a  contempt  or 
■gionst  this  House,  or  any  member 


J/'iy  3|  pt  m. 

IWSfedter  deliTercth  our  Message  to  the 

or  whole  House  being  present. 

Speaker's  speech  vhl.  fol.   158  ;  with 

ibtt  we  think  the  Record  sent  us  by 

^   is  no  other  than  an  Answer  to  a 


"K 


MisB  exhibited  by  the  Commons  *'  That  we 
Mseck,  that  the  execution  of  the  Judi^cnt 

r'  a  by  us  on  Fk>id  may  not  to  be  deterred, 
Aediwomfort  of  his  majesty's  Commons, 
MjhtdiseoiiTagenientof  that  House." 
''^^   'Knganswereth  ;  That  he  ever  speak- 
I  kit  heart :  That  he  will  shew  at  all 
I  w  a  fatherly  love  and  a  fatherly  care  : 
vanki  have  as  to  proceed  wit'ti  bu<;i- 
■  a  right  course.     He  knowetli,  tlint 
abate  done  proeeedeth  out  of  Ime  to 
hii  chiUreD,  but  out  of  too  great  a 
hemy ;  and  saith,  that  we  Iiave 
nth  too  much  celerity  and  alaci'ity  : 
bnvyen  who  were  present  an;  not  'to 
il    If  that  Fkndbe  guilty,  (as  liis 
'Wci«lb)li0  defcnres  ji  gmter  pu- 


105]  STATETRIALS,  SSCll  Ar£s8  II.  l6iOj^PrMetding$tgalmt  R. 


••c 


.  Mr.  Mallei  sakh,  that  he  would  hare  this 
husiness  thus  rest ;  tor  we  have  discharged  our 
ConscienceB. 

Sir  Gtorge  Moore  saith,  that  he  conceivetb, 
that  wliat  we  did  in  Floid*8  business  was  jus- 
tice'antl  done  justly :  that  the  civil  law  saith, 
that  in  rtbuM  du*.iis  ct  oh»curU  judgment  shall 
he  given  on  oath ;  but,  where  the  matter  is 
clear,  judgment  may  be  justly  given  without 
oath  :  and  these  words  were  clearly  proved  to 
ufti  by  the  concurrency  of  divers  witnesses ; 
and  tbereibre  what  we  have  done  is  done  justly. 
lie  would  not  have  us  to  go  to  the  Lords,  but 
aaith,  we  have  discliarged  our  consciences ; 
and,  if  that  which  we  have  ilone  may  not  be 
executed  he  would  not  have  us  to  hinder  our 
other  businesses  by  I  iirtlier  dispute  hereof. 

8ir  ThoiHin  Howr  saKh,  he  thinketh  the 
liberty  of  our  House  is  hereby  shaken :  he 
thinketh  our  judgment  was  rightly  given,  and 
therefore  would  have  it  stand  on  record  as  our 
daim.  He  saith,  he  hath  heard,  that  the  Lords 
cannot  take  notice  of  a  grievance  but  from  us ; 
and,  if  by  this  means  the  king  send  this  busi- 
ness  to  Uie  Lords,  we  shall  then  exclude  our- 
selves, and  the  Lords  will  henceforth  deal  in 
■uch  business  without  us,  and  so  we  shall  lose 
that  privilege. 

Sir /f^'/rv  Ptfoile  4aith,  he  thinketh  nothing 
can  be  done  herein  without  prefudice,  if  we  arc 
not  parties  to  it :  he  thinketh  therefore,  that  a 
IhU  is  the  best  course. 

The  Muster  of  the  Wards  saith,  that  we 
have  herein  appealed  to  the  king,  and  we  can 

S>  no  higher,  neither  would  wish  that  we 
ould  go  any  lower  :  he  would  have  us  pctti- 
tion  the  kin^  to  deal  with  us  as  a  father  herein, 
and  to  take  it  into  his  own  bands,  without  pre- 
ferring it  to  the  Lords. 

Sir  Sttmufl  Sundet  saith,  that  a  kingdom  or 
family  beinfjf  divided  cannot  stand.  It  is  a 
maxim  in  this  House  that  a  member  of  this 
House  may  not  speak  against  what  is  here 
done:  that' he  thinketh,  that  which  was  here 
done  against  Floid  was  out  (»i'  our  love  to  his 
majesty  and  liLs  children,  and  with  justice  ; 
and,  if  this  sentence  be  erroneously  given,  let 
^e  paity  adjudged  appeal.  He  saith,  that  we 
are  a  court  of  rtn'onl,  and  every  court  of 
record  hutli  |)owcr  to  give  an  ontli ;  and  want 
ol'  use  taketh  not  a^vay  the  jurisdiction  of  a 
court.  He  would  have  our  judgment  entered, 
and,  if  our  l<»ve  to  his  niiijest^  and  his  chil- 
dren hath  herein  conru|)ted  us  with  t4»o  much 
seal,  let  him  he  the  jud;^  of  it,  for  whose  Kake 
we  were  ko  comiptiMl..  Ho  saith,  that  the  ce- 
remony of  taking  i\n  OHtli  on  a  IxNik  is  de  puitne 
tempif ;  niid  this  was  a  i^ourt  of  Record  betbre 
that  cerenioiiy  wuh  useil  iu  |hc  giving  of  an 
oath.  lie  (h'sireth  agnin,  that  mir  judginent 
may  be  eiiten>d,  and  iht>n,  if  the  |Mirty  ad- 
judge<l  apiieai,  let  him  luko  his*  c«>iirse ;  we 
liave  discliargeil  our  con!<>ei(*iieeH. 

Mr.  StHtth  saith,  that,  it'  the  Iwly  Elizaln'th 
had  been  present,  and  coni|duinu«l  to  the  earls 
marshal,  they  would  have  punislied  Floid 
Without  miuisteriug  au  oath  to  the  witnesaes, 


for  they  can  gve  bo  oath :  that  ha  knop 
that  the  euU  maidial  hasepnnisfaed  and. 
prisoned  without  oath  in  his  own  caaas 
shall  we,  who  are  the  repreiaitaiive  boc 
the  whole  eomroonwealm,  dooU  wh0k 
judgment  given  by  us  without  oath  ahatt 
less  forve  than  thai  ofthecaila  manhais 
do  this  only  by  the  king'aedkt 

Sii-  Eduara  Conkc  auth,  that,  wfan  a  ^ 
nient  is  ready  to  be  given  whidi  conoCT 
king,  as  all  criminal  mattes  do,  than  ■■ 
acts  of  parliament  that  jodnncfla  ■halj- 
stayed,  thoiigh  a  command  come  froa 
king  under  the  great  or  privy  seal :  boto 
otherwise,  when  the  judgment  ia  to  b^ 
for  ielony  or  treason ;  for  therem  tha  Ic 
an  immediate  party,  and  he  may  deaiit  %m 
it  prosecuted,  as  weU  as  an  ordinary 
let  iiiU  his  own  suit. 

Mr.  &di€itor  saith,  that  tltt  M< 
was  sent  this  morning  from  his 
drew  this  business  into  questkn ;  andn 
leaveth  it  to  the  oonsideratioD  of  this  9 
whether  we  will  enter  this  judgmeuli  tka 
demanding  precedents  of  as,  wfaeieby  h^ 
see  our  power  to  give  such  a  judgmeAtf 
foareth,  if  we  do  enter  this  judgment,  it  ^ 
displeasing  to  the  king. 

Sir  Edwufd  SackouU  saith,  Aat  the  Jo 
in  the  Lords'  House  oi'  Pteliiimat  ai 


corded  every  day  in  rolls  of  parcbmem 
therefore  he  woiud  have  oius  so  done  toOi 

It  is  ordered,  that  the  Joumab  of  this  B 
shall  be  reviewed,  and  recorded  on  roll 
parchment. 

It  H-as  thought  fit  on  this  long  debale  fli 
Floid*s  btisiness,  that  a  committee  should 
ceed  to  draw  up  tlie  Reasons  and  graiM 
our  Judgment  ^vcn  against  Flokl,  and 
the  Jud^ent  itself  should  be  set  down  \ 
entered  in  due  form  ;  which  being  acoordi 
done  by  a  committee,  it  was  acoordingl) 
order  on  the  question,  entered  into  the  Jai 
of  this  House. 

May  5. 

A  Message  from  the  Lords  signifying, 
they  have  had,  during  this  paruameni,  i 
contentment  in  the  correspondency  hetwe 
and  them  ;  and  that  they,  having  heard  < 
censure  given  by  this  House  against  Fki 
desire  a  couterencc  with  this  House,  ioi 
accommodatiiig  of  that  business  ia  sue] 
as  may  be  wi.Tiout  prtjudice  to  the  Privi 
of  eitlier  House* ;  the  number  to  be  the  i 
House,  the  time  thiec  oVlock  in  4he  i 
noon,  pbice  the  paintetl  chamber  ;  and  | 
to  lie  given  to  the  committees  of  both  H 
to  confer  and  debate  fi'eel^',  that  we  mai 
better  umlerstand  each  othW*s  reasuns. 

Sir  Kd.  Cfcil  suith,  tliat  it  is  a  rule  am 
great  ]>er9oiinges  and   nrinees,    tliat,  it' 
would  give  a  res|iectful  auswcr,  they  m 
iHit  hut  by  their  own  ambassador  or  cna^mi 

Answer  is  given  to  the  Message  thm 
I^rds,  That  this  House  rectiveth  their 
ships'  message  with  a  gi«at  deal  of  ooi 


I 


>{  Itf]    SOOE  TUALSi  d2  Ch ARLB&  II 

H  ■iMHBtti.aiid  that  we  will  (»ttiii|pdie 

iif  fliwIia^iUr  loidiliitM  ttulher  wwwer  to 

'  i  Ai  aM^  \f  lome  meoiben  of  our  own 


& 


.X 

i 


iMrfJudbwoiikl  BOthave  direnitj 


ioiiie  moTB  wortuy. 
BBmdk^iwttni  to  the  Lords  that  we  will 
k«tkm  ndthea  answer,  we  then  ikiiy 
Ahmt;  wd  he  would  not  have  us  to 
tenor,  which  we  peroeiTe  is  sweet  in 
ii,  thdr  conceit  ot'  ns.     He  would 
■tBnMDD  with  them  from  the  {pniunda 
of  the  bw :  it  is  human  to  err  ; 
K  «e  the  hii^heit  Courts  of  the  king- 
krethvlVnlB  of  £ninr;  but  to  iier- 
k  te  env  is  beDuinr»  or  unworthy  a 


jk.J^mitk^  we  hare  given  a  judgment 
j>fiB>H^v«l  cwMd  it  to  be  entered:  he 
ll^Mtkve  « to  refiMe  a  oonterence  on  it ; 
if  ih^  kak  out  into  matter  which  may 
fa<fcgf  thit  then  we  may  desins  of  their 
BpsfhrdMr  time  to  answer  it. 
itii«riBal,^the>Iaailer  of  the  Wards 
Icnyour  Amwcr  to  the  Message  trom 
i«dii  ind  that  the  effiact  of  it  8h(3l  be  an 
of  owjoy  and  eontentment  in  the 
jwmyiluiey  that  hath  been  between 
Huinridming  aU  the  time  of  this  par- 
Si"' that,  ibr  our  |Hurt8,  we  will  en* 
tte  dQthwipce  of  the  same  as  tar  as 
>  ttd  thit  we  will  meet  ibr  the  con- 
■■Mrad. 
.  *"^ifinresaith,  that  there  are  three 
■■I  hinineM  to  be  considered  of  ami 
!«  That  we  are  a  court  of  record; 
■jhinketh,  will  not  be  opposed :  8. 
'_^/*fc  cognizance  of  this  business :  S. 
'*j^  vJHGfa  we  had  to  judge  and  sen- 
™' *ithoat  oath  ;  and  it  is  no  more 

■MiiMi**  I  ^  ■'*™^  ^*^'  making  of  false 
•~;^**  ^^  abuses  against  this  House. 
yam/  s^^-^  g,^^  ^^^  ^g  question 

*e  are  to  confer  with  the  Lords,  is  a 
"■it  not  a  general  question  of  oil  our 
'  M  «U  '  ^  therefore  he  would  not  have 
?*T  ■••"oferBnoa  debate  of  any  thing  that 
""'*|sii  particular  question.  And  one 
'2*is  be^  whether  this  court  having  the 
■•wtftof  record,  be  not  a  court  of 
•  •**  the  other  pouit  questioiuible  will 
^"*  **laweientenced  without  oath  ;  but 
^J"^^  seen  that  a  judgment  was  over- 
^J"fcr  want  of  oath. 

^^^'[laitli,  that  we  may  proceed  by 
» ■ '  'I'  thii  Court  hath  jurisdictif in,  and  the 
r^^tt  oath  is  a  substantial  part  iuciduiit 
^■■yfaJOD :  that  to  have  t«>  give  an  «>ath 
^""y^to  all  jurisiiictiiin,  for  there  is  no 
gyjaicaturc  but  hath  this  power :  that 
^^mm  that  may  bu  reversed  hath  one  of 
^  •*ectf,  nuUity  or  injustfCH: :  nay,  we 
^^l^^ceededon  oatJi.  for  Uie  witnesses  did 
lad  awcar  on  their  saliattims,  that  wliat 
^i^Bond  and  said  was  true  i  and  there 


R 


\6^0.^Primkge  of  Parliamenti      [ iq6 

wanted  nothing  but  the  form  of  laying  of  their 
hand  on  the  book,  to  make  such  oath  to  be ' 
without  question,  which  ceremony  is  not  now 
used  in  ail  [ilaccs,  wlien  oath  is  given;  and 
anciently  men  swore  by  laying  tbeir  baud 
under  the  thi^,  as  did  Abraluuu's  servant, 
others  by  holuing  up  the  liuger. 

&r  Ed.  Sand^i  saith,  that  the  end  of  thia 
Conference  with  the  Ijords  is  for  the  acooouno* 
dating  of  this  business :  there  is  a  preoodoit  in. 
Edward  the  third's  time,  that  the  Lords  did 
censure  without  an  oath :  the  question  will  h» 
chiefly,  whether  this  business  of  Floid  b» 
within  our  cognizance  or  no.  This  hiiainrw. 
came  to  us  accidentally  by  the  examination.of 
the  business  against  the  warden  of  the  Flei^  ; 
and  when  we  heard  of  these  foul  speecheSi. 
though  we  wanted  custom  to  give  an  oath,  yei 
reason  (which  is  not  flying  and  disputattle 
reason,  which  the  king  calls  opinion)  which  is. 
the  ground  of  the  law,  told  us,  tl;iit  we  naigh:^ 
censure  him.  Me  would  have  us  to  d^Sie 
the  truth  hereof  to  the  Lords. 

Mr.  Hacketfeil  saith,  that  this  House  is  % 
court  of  rcco.d  ;  the  king  himself  did  1.  of  hie 
reign  acknowknlge,  that  this  House  is  a  court 
andjudge  of  record  in  sir  Francis  Goodwin's 
case,  6  lieu.  8,  cap.  16,  it  is  there,  that  tlie 
clerk  of  this  House  his  book  is  a  record.  We 
have  power  to  give  an  oatli ;  for  it  appears  in 
the  Journals  of  this  House,  that  one  coming 
into  tliis  J  louse,  wlio  was  no  member  hereoi, 
had  here  in  the  House  the  outh  of  supremacy 
ffiven  him,  and  also  of  secrecy,  if  a  man 
deny  that  here  at  the  bar,  which  atler  he  cou< 
fesiiethon  oath  to  the  Lords,  we  uuiy  here 
ceusuie  him  and  send  him  to  the  Tower  :  that 
the  judgment  given  by  the  Loi-ds  and  king, 
15  £d.  9,  agaiust  the  two  Spencers,  was  re- 
versed m  £d.  3,  time,  because  it  wm  mm  nul 
accuMfment  ;  and  in  the  reversing  of  the  judg-< 
ment  the  Coiumous  had  a  voice. 

Sir.  A{/'urd  inoveth  that  all  the  parts  of  this 
business  may  be  distributed,  as  tlie  points  oi'law 
and  precedent,  to  some  of  tlie  lawyers  of  tl^ 
House ;  the  points  of  reason  to  be  the  part  of 
sir  Edwin  Sandys,  sir  Samuel  Saiides  and  sir 
i>udley^  l>igs;  and  would  iiave  us  hoki  to 
thatpoiut  ot  tlieir  message,  which  was,  that 
notliiu<^  should  be  meddled  with  that  is  pr^udi- 
cal  to  Uie  privileges  of  this  House. 

Sir  DaaU'if  Digs  would  liave  us  stand  with- 
the  Ifords  on  the  aoeommodatiug  of  this  business, 
and  would  liave  us  shew  preoe<lenls,  that  this  ia 
a  court  of  record,  and  liath  i>ower  of  juitiica- 
ture;;  and  that  then  the  reuhous  should  be 
shewn  why  we  did  prtKH'cd  herein. 

The  XiusUr  of  the  WurtU  saith,  tliat,  sincft 
we  have  caused  the  jutlgincut  to  be  entered,  ha> 
would  not  have  us  stand  on  it,  or  say,  tliui  we 
intended  not  U»  make  it  a  precedent ;  tur  he  would 
liave  our  woiti  and  actions  ^ree. 

Sir  Sittuutl  SutiUrs  would  have  them  to  asaagn 
us  our  error,  aotl  that  we  slmuld  uot  ^^u  to  shew 
our  reasons  UU  their  lordshi|)s  hud  tii-st  slu^wn  us 
their  exceptiuus,  and  then  %ie  should  give  an- 
swer to  them. 


J07]  STATETRIALS,S2Charle8II. l6SO^Pr0eeeiing9agM$tR.Tkmi 


May  Sf  p.  w. 
At  a  Conference  with  the  Lords. 

The  lord  an;hbishop  of  Can/«rdurv  saith,  that 
their  lordships*  purpose  is  not  to  give  any  par- 
don or  defence  tn  Floid  or  his  offence,  but  only 
to  confer  of  the  manner  of  Floid*s  punishment ; 
ibr  their  lordships  say  not  but  that  he  hath  de- 
served as  great  a  punishment  as  we  have  cen- 
sored him,  and  porhaps  more.  That  he  is  happy 
who  shall  brin^  any  thing  that  may  conduce 
to  the  seeking  torth  of  the  truth  of  this  offence : 
that  their  lordships  seek  not,  nor  purpose  to 
question  any  power  hereby. 

8h*  Samuel  Sondes  saith  that  our  House  doth 
with  all  respect  and  thankfulness  acknowledge 
their  lordslups*  favour,  in  the  good  correspon- 
dency that  liath  been  during  this  parliament 
between  the  two  Houses,  lliat  we  are  free 
irom  any  intent  to  make  any  irruption  into  their 
lordships  coiist,  but,  having  such  an  occasion 
offered,  we  thought  we  mi^t  witliout  offence 
or  prejudice,  esctend  our  jurisdiction ;  which 
yet  we  have  not  done  farther  tlian,  we  conceive, 
reason  did  lead  tis.  That  this  complaint  was 
first  brouffhtto  us,  as  a  fault  against  the  War- 
den of  the  Fleet,  (who  stands  charged  ^ith 
many  foul  crimes  before  us)  for  that  he  (having 
heard  of  these  scandalous  speeches  spoken  by 
Floid  his  prisoner)  ctmoealed  the  same,  lliat 
when  we  understood  hereof,  out  of  our  zeal  to 
his  maji>sty  and  his  children,  we  presently  sent 
for  this  Floid  wlio  spake  those  vile  and  malici- 
ous words,  and  on  searching  of  him  we  found 
in  his  pocket  a  scandalous  uM  a^piinst  a  noble 
member  JT  this  House ;  (sir  Edw.  Coke,)  but 
we  thought  it  not  seemly  to  join  that  offence 
with  so  ipneat  a  one  against  so- noble  a  lady  and 
her  husrand,  and  so  proceeded  to  an  unaiumous 
judgment  against  him.  That  we  hope,  as  we 
are  careful  not  to  touch  the  hem  or  skirts  of 
their  lord.slii|>s  privileges,  so  tlieir  lon1shi()s  will 
not  press  too  hard  on  ours,  we  having  herein 
done  nothing,  but  what  some  lawyers  of  our 
House  (lie  hopetli)  will  shew,  that  by  law  we 
may  and  arc  narrantetl  to  do. 

The  Lord  Treaiurer  saith,  that  the  Lonis  do 
conceive,  that  all  those  offences,  which  concern 
not  tlie  lower  Hoiuie  or  some  member  of  it,  do 
properly  belong  to  be  Judged  by  the  upper 
House,  as  by  long  practice  and  many  prece- 
dents is  shewn  and  manifest. 

Sir  Eduard Cuke  saith,  that  we  hope  their 
lordship  will  deal  with  us,  as  Abraliam  did  with 
Lot,  who,  haviug  chose  the  lefiliand,  gave  him 
the  right,  and  biui  him  go  wliitlier  he  list.  He 
saith,  tliat  the  House  of  Commons  hath,  in 
manythin^,  aih-e  lilierty  of  judicature:  he 
desireth  their  lordships  to  rcmeml»er,  that  they 
were  gentlemen  before  they  were  lords;  anil 
therefore  we  hope,  tlieir  lordships  will  make  a 
favourable  construction,  and  not  press  too  Imrd 
on  us,  if  we  have  (as  we  believe,  and  hope  we 
have,  not)  i^me  beyond  precedents.  He  de- 
•ireth  their  lordsbip.4  will  be  pleased  to  consi- 
der, that  our  House  is  a  court  of  record ;  for 
that  court,  whicl^  bath  power  to  imprison  and 


set  fmes,  is  a  court  of  record ;  ar 
House  hath  power  to  fine  and  impri 
sireth  their  lordships  to  remember 
Ed.  3.  an  archbishop  for  causing  a 
our  House  to  be  served  with  a  su 
grievously  fined ;  that  by  the  statut 
4.  all  menial  and  other  servants  of  a 
our  House  are  free  from  all  airest. 
nifcst  and  known  to  all,  that  whosoe 
court  of  record  may  incidentally  € 
oath.  In  3  Jac.  the  wutlen  ol 
was  examined  at  the  bar  iu  the  Hon 
mens  on  oath.  That  these  words  w 
against  the  members  of*  our  House 
est  pars  patris,*  and  the  king  is  ever : 
be  resident  in  our  House. 

llie  Lu9'd  Treamrer  saith,  that  th 
pected,  that  we  would  have  sheivn 
that  this  business  was  censurable  by 
That  tlieir  lordships  do  acknowledg 
concemetli  the  House  of  Commons, 
ber,  or  the  servant  of  any  meml 
House,  doth  lie  within  the  comp; 
power  to  judge  of. 

Sir  Ed,  Samlyt  saith,  that  we  did 
to  extend  our  power  beyond  the  privi 
House : — That  in  this  particular  (v 
ho])e  there  will  here  never  be  the  liki 
thought  we  might  refer  it  to  the  rei 
other  judgments,  for  we  may  judg 
done  ag^nst  this  House,  or  a  mcinb 
and  we  take  this  to  be  against  the  k 
as  resident  with  us  as  any  member 
thought  delay  would  have  extenuate 
uicnt  and  his  offence ;  and,  though  \ 
used  to  judge  in  such  a  case,  yet 
'  consuctudine  referendum  ad  ratio 
*  ralem.' 

l*he  Lord  Treasurer  saith,  that  tli 
free  us  from  any  intent  in  us  hereby 
their  lordships*  prri'ileges:  That  tl] 
ready  to  do  us  right,  so  we  take  s 
witliout  prejudice  to  their  privileges  ; 
we  have  shewed  our  ascal,  they  will  s 

Mays. 

Conference  vrith  the  Lords,  tot 
Judgment  given  on  Floid. 

The  An^hbishop  of  Canterbury  sai' 
Lords  were  the  first  that  did  suil 
business,  and  the  Lords  were  the 
did  send  in  it:  Tliat  tlie  Lonls  c 
exceed  us  in  nobleness,  and  seek  not 
but  verity :  That  they  seek  not  to  f 
liberties,  nor  would  have  us  make  ir 
their  privileges :  That  their  lordshi| 
such  causes  judged  by  them,  and  do 
we  will  leave  tlu:ir  lordadiips  \ihere 
thein. 

The  Master  of  I  he  Wards  saith, 
so  much  embrace  the  ^ood  corres[>ui 
amity  tliat  is  between  tlie  Houses,  th 
ratlier  for  an  accomiuodatton  than  a  c 

The  Arclibishop  of  Cantertmry 
tlieir  lordships  will  kindly  embrace  ; 
modation  which  b  worthily  propot 
hkc  ourselves:   That  their  forush 


rXTE  TRIALS,  3S  Charles  IL  iGSO^^Privitege  of  Parliament.      [  1 10 

the  Committee  thought  fit,  that  we  should  nol 
adrisonor  cooti-adict  their  lordships,  if  they  will 
jfive  further  sentence  on  Fluid,  but  only  desiro 
their  lordsliips  to  take  into  their  consideration 
the  hanousness  of  tlie  offence,  and  to  do  it  witli 
expedition :  and,  for  the  second  part,  to  offer 
unto  their  lordships,  that  our  precedent  shall 
not  be  drawn  in  consequence  against  the  pri- 
I'ile^s  of  their  or  our  House,  and  that  there 
shall  be  here  ^if  their  lordships  desire  it)  a  pro- 
testation in  this  House,  that  this  pn^edent 
shall  be  no  prejudice  to  the  privil«;gef>  of  either 
House,  and  that  tlieii  we  will  di'sirr  there  way 
be  the  like  protestuiion  in  their  House. 

Ma  if  12. 

Sir  Edward  Cooke's  Report  of  the  last  Con- 
ference with  the  Coniiiiiitei*  of  the  liords,  con- 
cerning: the  busini.  ss  of  Edw.  Fluid.  He  saitli, 
that  he  divided  his  s|KMH.'h  into  two  iiarts :  fint, 
the  induceuient;  ulieniu  he  laiti  down  our 
confidence  and  resolution  to  maintain  the  good 
correspondency  with  the  I/>nls,  by  means 
whereof  this  (larliantent  hath  reduced  great 
aliuses  to  a  gooil  onler,  by  |)unLshing  of  great 
offenders  : — That  what  we  ditl  was  far  from  any 
intent  in  us  to  gain  a  ])rcce<lent,  or  to  inrade 
their  lordships  lil»ertics  or  privileges  :  lliat  the 
judgment  was  given  out  of  our  zeal  to  his  ma- 
jesty. The  second  part  mtis,  for  the  accom- 
modation, that  we  relied  on  their  lordships  kind 
messages,  and  that  we  desireil,  that  tliis  judg- 
ment might  be  so  aeconmuNlatetl,  as  it  mig^t 
be  without  prejudice  to  either  of  the  Houses : 
Tliat  we  leave  it  to  their  lonlships ;  if  they 
would  proceed  to  a  judgment  and  censure  of 
Floid,  that  we  desire  they  w«)uld  then  do  it  aC" 
c*ording  to  FloidN  dcniei  itM,  and  tliat  the  execu- 
tion might  be  done  with  s{»eed  ;  and  that  \ie 
would  make  and  enter  a  protestation  that  this 
preceflent  should  not  be  pn-jiidicial  to  either 
House:  That  hereu|K)n  the  Lords  did  (aflera 
private  consideration)  present  to  the  sub-corn • 
mittee  a  I^-otestation  in  Ace  vtrlni  t  "  A  Pro- 
testation to  be  euten*<l  in  the  House  of  the  ' 
Lords,  by  the  consent  of  tlio  Hi^useof  Com* 
moiLM,  that  the  procee«lings  lately  past  in  thct 
House,  on  the  Judgment  of  Kthvnrd  Flotd,  le 
not  at  any  time  hereafter  drawn  or  used  as  a 
precedent  to  the  prejudice  of  eidier  House; 
but  that  the  privileges  of  both  Houses  do  re- 
main and  abide  as  before." 

Sir  Nath.  Rich  moveth,  that  the  Committee 
may  have  power  to  conclude  on  the  Protesta- 
tion which  the  Lords  offer ;  but  ^xiuld  havtt 
added,  that  neither  the  proceedings  by  us,  nor 
any  othei'  proceedings  which  are  or  snail  be  in 
tins  business,  may  be  to  the  prejudice  of  th« 
privileges  of  either  House  hcreafier. 

The  Maiter  of"  the  Wurda  coroplaincth,  that 
he,  seeking  at  the  Conference  with  the  Lonla 
to  repair  or  exphiin  a  mistaking  of  sir  Edward 
Cooke  in  the  delivery  of  the  message  at  the 
Conference  at  the  Committee,  was  told  by  sir 
Edward  Cooke,  that  there'  was  the  spirit  of 
contradiction  amongst  our  Committee,  pointing? 
at  him;  and  mlding  withal,  thai  he,  who  ahouii 


in  general) 
aU  propound  the  manner,  bow  we 
this  oiflereDce  should  be  accommo- 

f  er  of  the  WarHs  saith,  that,  as  their 
St  acsit  to  us  touching  the  accommo- 
liis  business,  so  we  desire  their  lord- 
I  first  propound,  how  they  would 
mroodaled. 

hbl&liop  of  Ctinterbury  saith,  that 
I  their  lordships  have  had  an  irrup* 
r  liberties  by  a  judgment  given  bv  ; 
uM  tliat  we  should  meet  them  hau 
east  for  the  accommodating  of*  it. 
f/tr  t^  the   WariU  saith,  that  our 

bad  to-day  some  speeches  of  a  sub- 
and,  if  it  please  their  lordships,  \se 

again  to  the  House  to  confer  of  a 
tee,  touching  the  accommodating  of 

V. 

t  was  agreed  of  all  sides,  tliat  we 
laiot  our  House  with  this ;  and,  in 
ne,  thf^r  lordships  went  into  their 
jiudder  of  a  sub-committee,  and  the 
lumber  of  iliv  sub- committee, 
[ouse,  the  Speaker  sitting,  aAcr  the 
«ith  the  Lords. 

irile  «iith,  that  he  would  have  this 
acconimodatetl,  as  by  this  precedent 
e  net  ourselves ;  and  tliai  this  should 
T  htn«f ,  nor  be  alleged  ag-dinsit  theiu 

he  wisheth  the  business  be  so  ac- 
d,  aa  the  delinquent's  punishment 
extenuated, 
ge  iascnt  to  th«r  lordships,  to  desire 

may  be  a  sub-committee  of  botli 
Minted  to  accommodate  this  business 

whcreiu  we  leave  the  nomination 
t  time  and  number  to  their  lord- 
ly saith,  that  it  \&  a  maxim,  that 
mi  non  habet  Imperium,'  so  as  the 
'  ant  question  us,  nor  are  we  to  ac- 
rcm,  for  any  thing  which  themstives 
The  sentencing  of  Floid  lieth  nnt 
vwcr  witliout  us ;  and  therefore  by 
re  not  lo  account  to  their  lordships 
igment  we  have  given  herein. 
niltee  of  sixteen  of  tlie  Upper  House 
ed  by  the  I^nls,  and  twice  as  many  ! 
die  tccommodatine  of  this  business  ;  | 
ire  to  meet  on  FriiEiy  next. 

il/sy  11. 

nri  Cooke's  Report  concerning  the 
I  widi  the  Lords,  touching  the  busi- 
!■!.    That  the  Committee  agreed  on 
I W  delivered  to  the  Lonls  for  the  ac- 
ft^  of  that  business,  and  hath  divided 
p  firti :  first,  the  inducement ;  se- 
ll irtare  and  matter  of  this  accom- 
Dr  the  first,  that  we  never  meant 
llbcir  lordships  power,  that  we 
»  baeause  of  the  notoriousness  of 
%i  Mai  of  our  duties,  for  the  ho- 
iny  aod  his  children,  and  our 
■I  the  teataice  boog  thas  givcDy 


inl  STATETIU[ML5,5^CHAU«fin..l6dO.*slVmxeiu^r«^^^ 


Mkto  BOnrffedteicfD  i&tfae  Hoifte,  w«  ntft  wor- 
thy of  bis  head. 

Sir  Edward  Cooke  proteflteth,  that  he  spnke 
mierally,  «nd  nOMUit  not  -the  Master  m  the 
Wards;  biltaaid,-thaithelikecoiitradietioiis,at 
the  last  conTention,  were  the  overthrow  of  the 
pariiament :  That  'the  wonls  which  he  spake 
at  the  time  ware  as  the  clothes  in  Birchin 
•Lane ;  if  the  Master  of  the  Wards  did  apply 
the  same  to  himself,  it  was  more  than  he  meant 
to  him ;  for,  when  he  spake  those  words,  he  took 
not  measure  of  the  Masttr  of  the  Wards'  body. 

On  sir  Bdward  Cooke's  protestation  in  the 
House,  that  be  meant  not  the  Master  of  the 
Wards,  in  any  of  those  words  which  the  Master 
of  the  Wards  did  except  ag^ainst,  the  Master  of 
theWaids,  in  the  Hoose,  openly  said,  he  was  well 
satisfied  with  sir  Edward  Coolce's  protestation. 

iSUr  Edmard  Saekvilie  would  hare  us  send  to 
the  Lords,  to  know,  if  their  lordships  in  their 
-House  hareconfinned  the  protestation  they  of- 
fered at  the  Committee ;  and,  if  they  have,  that 
then  he  would  have  us  consentto  it. 

It  is  ordered  by  question,  That  a  Mesmge 
shall  be  sent  to  the  Lords  on  Monday  morning, 
to  know,  whether  they  do  aUow  of  the  Protesta- 
tion offered  at  the  Comfereace  by  the  Committee 
orno. 

Afoy  18. 

A  Messaffefrom  the  Lords,  That,  since  we  re- 
ferred die  judgment  of  Floid  to  their  lordships, 
the3r,  understanding  that  we  have  a  trunk  of 
writings  of  the  said  Floid's,  wherein  may  be 
something  to  aggravate  his  fault,  do  desire  that 
we  will  send  me  same  to  the  clerk  of  their 
House  to  be  opened,  that  the  writing^  therein 
may  be  looked  into. 

By  reason  the  messengers  from  the  Lords 
said  (contrary  to  the  agreement  between  us  and 
their  lordships,  on  the  Protestation  entered  in 
both  Houses^,  That  wie  had  referred  the  Judg- 
ment of  Fknd  to  their  lordships,  we  returned 
Answer,  that  we  would  send  Answer  to  their  lord- 
ships'message  by  some  members  of  this  House. 

Whilst  we  were  in  debate  what  Answer  to 
send  to  their  lordships  message,  another  Mes- 
sage came  from  tlie  Lords,  by  the  same  messen- 
gers they  first  sent,  that  their  lordships  taking 
notice  orthe  first  part  of  the  Message  they  last 
sent  us,  do  now  (to  take  away  all  scruple)  send 
to  acquaint  us,  that  the  said  first  part  ot  the  said 
messa^was  mistaken;  and  the  effect  of  their 
lordship's  desire  is,  to  have  the  said  Floid's- 
trunk,  that  they  may  look  into  the  writings  in  it. 

Answer  to  this  second  Message  is  given.  That 
Ac  trunk  shall  be  sent  n^  to  the  Lords  (as  their 
lordshius  desire)  to  be  disposed  of  as  their  lord- 
shius  snail  please.  And  acconliiigly  the  trunk 
and  key  were  both  sent  to  their  lomsnips  by  the 
fierjoant  of  our  House. 

The  Lords  of  the  upper  Honse  of  Parliament 
did,  this  90th  dsiy  ot  May  16  M,  censure  Kd. 
iHoid,  whom  before  we  of  the  lower  House  had 
oensoreil ;  but  their  lordships  called  not  us  to 
dflmand  Judgment  (as  in  other  censures,  on  bu- 
ivhefiof  we  teveintbittod  thesa,  they 


used  to  do)  booanse  we^had  ibe 
ment  on  tne  aaid  Fhdd :  and, 
•thought  tl|e  Judgment  Mid  8 
on  him  ws^  too  great,  their  lo 
on -him  a  heavier,  viz.  *<Tbai 
graded  from  his  gentility,  ride 
nrom  the  Fleet  to  Cheapside  on 
out  a  saddle,  ii4th  his  nee  to 
and  tlie  tail  in  his  hand,  and  th 
hours  in  the  pilloir,  and  then  ti 
«d  in  the  forehead  with  ihe  leti 
Friday  following  he  shall  ride 
said  nlace  in  the  same  manner 
and  tjiere  stand  two  bouts  mo 
with  words  in  a  paper  in  hishai 
fence : — To  pay  for  a  fine  to  tl 
of  5,000/.  and  to  be  a  prisoner  in 
his  life." 

June  1. 

I  saw  this  day,  after  our  H 
Floid  stand  in  the  piBoij ;  the 
tion  of  liis  offence  bang  altei 
were  appointed  by  ourHous< 
**  For  i^ominious  and  despil 
*^  malicious  and  scornful  beha 
*^  Count  Palatine,  and  die  king 
**  and  their  chiMren."  This  ^ 
breast  and  back,  and  he  stood 
pillory,  and  did  ride  according 
of  the  upper  Honse. 


The  iblkiwing  Heads  of  the  I>f 
place  in  the  House  of  C< 
iiig  Floyde  are  taken  f 
Journals. 

1  Commons  Journal 

May  1,  p.  m. 

Sir  li,  Manwarinfi.     That 
l(»rd  Warden  say,  that,  when  h* 
Wales,  Floyde  questioned  for 
the  BiUe  :  and  now  is  questioi 
against  the  noldc  king  and  que 
Tlierefore,  sithence  he  hath 
God  and  man,  mo?eth,  that  nc 
man's  sake  he  may  have  men' 

Floyde^  at  the  liar,  charged 
with  sp^aking'the  scandaiou 
mentioned,  against  the  prince 
lady,  and  with  his  denying  th 
in  (lis  denial  thereof. 

Pemugto',  confronting  FI03 
former  speech ;  tliat  knowei 
what  time  these  words  spok 
such  man  as  Fryer,  except  l)r 

Mr.  HachfyU.    That,  ui  tl; 
Lettice  Harrys,  he  obsorveili, 
that   she  denieth,    she    ever 
warden  of  the  Fleet ;  but  tha 
one  W  illianis  with  it  because  i 

Sir  It}   PhiUi^prx.    Came 
to  speak  freely  in  this  parliani 
better  occaiiiion  to  shew  \w 
noble   lady,    the  ki-ig's  dauj 
offence  :  9dly,  against  whom  c 
the  pumshioent.    The  frftece 


ITE  TRIALS,  32  Charles  II.  l  GSO.-^Pimiege  of  Parliament.      [114 

wkich  may  J>«  tliscovercd  by  his  jiaiycrs.  To 
siiKiHfiid  our  sentence. 

Sir  Edw.  Cecifi.  To  moke  this  punishment 
p^reater,  than  hath  l>oon,  in  like  cases,  hath 
been  for  siihjerts  scandals.  To  boi-e  linii 
tlirough  the  top;^iie ;  and  a  B.  in  lus  fore- 
head. 

Hit  Geo.  Goring.  Aiow  called  np.  To  havo 
him  set  upon  an  ass  :  1^  .stashes,  as  10.  bt^ads  : 
at  every  one  to  s^altow  a  bead  ;  and  12  jerks 
to  mak<'  him — 


rf  ipiteful  aipiinst  the  king*  and 
ibenuB.  The  persons,  ai^inst 
lOpeAil  issue  of  our  ^preat  master, 
arth,  because  he  endeavoured  to 
d  marie  hnn  unhappy.  For  her  : 
*  ind  iMinour  to  any.  Floyde  a 
91  original :  a  popish  knave,  the 
n  of  all  other.  For  his  puntsh- 
rehim  carrried  from  "Westmin- 
I  his  face  to  an  horse  tail,  a  paper 
jreat  letters  ;  "  A  popish  ^^Tetch, 
njftlie  kin<;^*A  children  :"  to  the 
there  to  lie  m  Little  Ease. 
lou.  Because  a  prisoner  com- 
be Lords  of  the  C.-ouncil,  to  ^  to 
et  them  know,  we  desire  to  have 
iirouprh  London. 
m.  As  bir  Tho.  Row. 
Kinna^ton.  That  Floyde  put  into 
D  of  the  |ieace. 

iorc.   No  punishment  too  great 
'.    l^ppceilentK  have  a  beginning, 
ack  to  the  Fleet.   * 
I  vouchetli  a  precedent  of  the  * 

rofte.  1,000/.  fine,  to  be  eni- 
rars  of  the  Palatinate  ;•  and  to 

To  carry  him  in  a  disgraceful 
Power ;  and  he  there  to  i-emain, 
ted  by  the  I^rds. 
tumour .  To  go  from  "Westmin- 
ail,  with  his  doublet  off,  to  the 
b  about  his  ueck,  and  as  many 
IV,  as  bf-ad*?. 

f  o  punish  first  here,  then  may 
the  Lords.  To  send  him  to 
ipping  :  beads  :  Tower  :  Little 
rtncr  pimishment  by  the  Lords. 
ile$.  Jsiorry,  so  -imworthy  a 
ear  the  name  of  an  English - 
1  evade,  and  say,  lie  were  a 
Jlory  ht^re,  with  a  pai)er  of  his 
■  his  vile  wonls  :  whipped ;  Iris 
ixeji,  and  especially  hts  friar*s 
im :  if  these  can  defend  him 
ipiniri  ^^H :  so  many  more  at 
;  and  so  at  the  Tiinple,  and 
en  to  return  him  to  the  Fleet : 
iin  into  a  worse  prison. 
jptom.  To  suspend  our  judg- 
•en examined:  tbrmayaggra- 

.  To  the  Tower  at  first :  then 
(Oidt  ahaut  it. 

w.  To  lc*a^  e  out  none  of  these 
rbe  doubt,  her^iuse  committed 
lb  Mispend  our  judgment,  till 


Not  to  defer  it,  nor  to  put  it 
L  Oynenteth  to  the  punlsh- 
r  hv  air  Ho.  Philipiies  :    and 

ft^fy  ad«ietb,  boring  through 

^f^  have  his  tongne  cut  out, 
I,  he  an  intelligeucar ; 


Mr.  ISafisburi/.  Sorry,  hath  any  Welsh 
blow!  in  him  :  yet  but  half,  for  half  English. 
Agri^i'lh  witli  tlie  most  smcre  punishminit^ 

Mr.  Price.  A  paper :  pillory :  riding  upon 
an  horse  backward  :  and  200/.  fine. 

Sir  Ho.  Bevcli.  Agrceth  with  the  greatest 
punishment,  but  bIfHxl ;  and  would  not  have  the 
Deads,  See.  put  pi>on  him,  lest  should  lie  thought 
to  be  for  hts  religion.  To  defer  the  fine,  tor 
search  of  the  papers,  for  his  greater  pmiish- 
ment. 

8ir  Jo.  Jephion,  To  punish  it  presently.  To 
whip  him  to  the  Tower ;  vi'/.  as  tar  again,  as 
those  for  the  Spanish  ambassador :  and  a  g^ood 
fine. 

Sir  Kich.  Gravenor,  Not  Vn  defer  his  punish- 
ment. Whipping  to  the  Tower:  Papers: 
Beads  with  him :  Out  of  the  commission  of  the 
l>eace:  Unbarristeretl. 

Mr.  Finch.  Desireth  all  these  punishments ; 
yet  no  coqtond  punishment,  because  no  proof 
upon  oath  against  him.     Pillory. 

•Sir  Tho.  Wryneman.  To  cany  Iiim  to  the 
Fleet,  and  whip liim.  And  hopeth,  upon  search 
of  his  paiiers,  to  find  matters  to  hang  him. 

Sir  Jo.  Strangevfi^fs.  To  make  a  precedent 
in  this  case,  if  none  beibre.  Whipning :  boring 
his  tongue,  at  Cheapside :  and  tlien  to  return 
him  to  the  Fleet. 

Sir  Edw.  Wnrdor.  To  make  a  preceilent,  if 
none  before.  To  return  him  now  to  the  dunGr^>on 
in  the  Fleet.  Whipping:  as  many  lashes, 
as  the  prince  and  prmccss  old :  boring  in  the 
tongue. 

Sir  Guy  Palmes.   No  blood.    Tower,  &e. 
^  Mr.  Angel  I.  A  gag  in  his  mouth,  to  keep  him 
from  crving,  and  ]vn>ouring  pity. 

Mr.  Towerion.  To  have  hiin  stand  upon  the 
pillory  at  the  excliange,  that  the  strange  mer- 
chants may  know  it,  and  piiblish  it  abroad.* 

Sir  Jo.  iValfcr.  To  avoid  cnielty  in  his  jni- 
nishment.  To  vilify  him,  as  he  hath  done  these 
noble  princes.  To  ride  backwanl  on  an  horse : 
A  fine  that  may  go  to  the  Palsgrave ;  because 
asked,  whitherthe  lail  would  go:  pillory :  his 
lieads,  <Scc.  to  be  hanged  about  him,  to  shew, 
from  what  root  this  grew.  That  he  laiiglied  at 
the  Icms  of  Prague ;  therefore  to  make  him  cry 
by  whip|Mng. 

Mr.  Malktt.  Tower,  presently.  Whipping 
Ace.  to  be  respited,  till  the  pnjKTS  ])eruse<l. 

Mr.  G/anvr///f  sccondetn  sir  Jo.  Walter's  mo- 
tion. Not  to  be  disputed,  but  we  may  df>*hat, 
which  we  are  about  to  do.  To  do  this,  and 
leave  further  pimishment  to  the  I^rds. 

Mr.  Alford  coucurrelh  with  sir  Jo.  XS'^uUm 
I 


115]  STATE TRTALS,33  0BAnLltslLt68a~Pror<-nfiii^ff^aM*(R.Tl« 

in  til,  Init  whiiijiing-.  To  fiae  bim,  instead  of 
vhifntmg. 

!*tr  H.  Andfrvn  eonforrMh  wilh  rir  Ro, 
PhiDipptTi.  Not  rati^fird.  loukchim  out  nrtbe 
jHisiin.  uli>rcuiiioiliplonlKDf  thecounril  have 
TOiumLti!''!  timi.  I'aper:  btanikd:  ridetack- 
«ank:  hmis  about  him. 

Sir  KJa:  &i>iJi.  >iu<-li  dirtirahy  in  thb 
nu*e.  T«  br  iit4i«ilTi««l.  ThaiourMUteuce 
wi!l  becsBunM  in  a,^<  n  (Mil ot'ihe  Christian 

Titt  ri-.l  '>'  11  I'l  afftrtionlo  rehinoii.     iin  i;,i-i,   anil   paiiicularv   rf  ox 


:ui<1s 

l»(TS.*n*,  ii»,  EtI.  li.  : 

Till* 


r;'""' 


il  Qiinn  Jane,  cvcaped 

i.t'  ni'p.Kiws  in  relieioD. 

iW'^  ill  her  enr- 

biil  tor  the 

.  briiu:  ibfoi. 


For  f>l«-,   nulicioii*  a^ 

"  ■ihti.Ik.-,    il..   .  -.  the  kinj^'a  d 

"  hor  bii-lti  .■."     •  ■  stand  m-  u  |il 

Ss<-k  s.-  U'.     ■        .'I  at   1,000-'. 
Committee  lo  aii\eg  and  esamii 

Sir  7^«.     irtmlKorli    mareth 


Till-  1. 


Ihe«i 


eCw 


>1j-    Sbeifield  added. 
I  -i-yoe  Hill)  i\\  'wed,  and  lo  be 
'  »Tiiiii;;,     The  SenleDce  to  be  rt 
^b('iitr-,<>l'  I  i^::.!  )b.Uk«e^ 

'  ihu   puryoir,    lo    Ksa 


uil.  ti 


evcepi  tinn  detn^iWi 


Yh.}  V  -alkd  in  lo  tl.e  bar.  i 
Mr  I^prik^'pnnoiincn]  bt^jodii 

TlurwsnlFn  of  lbeTV<l  connni 
Fkijiie  tU<  mi:ht  in  BohoD'n  < 
brias  FVide  hadter  lo  We<aminf 
tight  ti  tW  cluck,  tad  to  detictr  1 


(•oodoIlV.  wi-inis  eA'  evntiiniit. 

To pnni<ii  him  »i:h  as  mu.h 

K"     r.iiiiiir  bifkiranl :  (Miier'  pilloty  in  divi-rs  1  Ifev  ■>  t 

i-tiumat  ,  L     -  '  iu  a  <lam:«>''ii  i  "  *'  "' 

tor  w-nie  lOtai-.r. !    ■  liiw.  "       Mt.  Priet.    AD  (hit  dar   in 

Mr.  Pi-'u-'/.  To  « hip  him,  eYce|«t  «iihin  '  I>ii-mhmdi  pui  into  (■or  han 
»:Ti.Tr.w.niti  i.!ivh^(«j  IlWP/,  Hoc.  '  oHirfii.     Nvny.Uiibv  the  ki 

S:r  F-,  t'vi-n.    No  whini^r^; :   Uit  fioe  '  h»irr-t"*.or  inva-er, 
iatbetd   .-f  ;1«|.  "   TtTO.r,   Uvaune  i»in   t.^jj       !v     jv.    »>-:«.-;».     The 
pndti.  I  diu^tpf  r>-i)»v-!cii.  in   some  ill! 

.W.!!;™  .7':*r  ITc-ii.  To  pte  patE-hmmi  Mr'juneut.  iir.>:e  than  anv  oti 
f>'«'(heb)ih«>«nBiiRfi}.  If  make  apnvedetii,  S.-t  n  ^iio  tbf  l<>nk.  aarpeb: 
Iri  nbrwilkKt-M -' — ■■  — No«l«enenKh  a  N,<  n.  il  n.  ■  ^i^nicBt  corei 
■rawoN,  V  *^aU  hiin  ifae  kins'*  rtiiUivT  '  To  pnv«ed  H  ■  .of  T|— gfa 
Tlmi^  bi*  M  _  ai-     J,;  -     "  ■       arm,   (Iftiiai 

■^  :r^,  ■      SL- F.i-T.  L er^      Tlac  pnfian 
■   >  I    Me-  j  i»  W  tW  hipfueo.  tku  *t«  "  • 
>«»-  I  N«k  J  '■  1  precrAt.     By  Mr. 


Ttat    »«    i  _ 

SMC  ^  kii^'f  )n- ,  jodrBMBi. 

Mr.  Ml  'h  J.    Ai ««  ken  few  to  wMd  iir  |  br  asv.  f 
*«»h**«,  *«  WTep(-wt(neMlMi»Uw  <i  wit  a^^ 

£VW SiriM^. e«n.  '  »i«  \v« Tcvwrfic  >   ■iiibii  ba> m 

Kt^  W^TMiiy.   IV  Hm  m  k  fti '  fcRT- 


SotKiue  JWnt 


r**"*«"*E*t«»J  tofa  «  (MMV    4a«.  j^M»Aw'^  T, 
Lawr:   »  bi  iTMcki  kaibcr  an*  »•     ««h  e^aw^axc.     T 


*ra>«Mc.  aV  takv  vMuir.      T'  » 


117]    STATE  TRIALS,  32  Cii  arles  II.  iG^O.-^PHvikge  of  ParUammt.       [118 


iDBiided  him  to  let  the  House  know  his  ca>-e 
about  Finyde.  Thanks  to  the  Houiie,  tor  their 
love  to  him,  and  bis  children.    That  the  kin>^ 
hath  given  order,  upon  Fluy  (Ps  petUion  to  his 
learned  counsel,  toezaiKJiieFlnyd.    That  the 
petition    was  deUver^d  by    Uichard   I'loyile, 
where  the  kini^  thought  it  had  been  Ed\iard 
Floyd  himself.     That  Floy<t  now  uxai tuned 
by  Mr.    Attorney  and  fMiUicitor  denictU    it. 
\Vill,  to  morrow,  gi\e  oHer,  to  have  (liis  ^xix- 
mined  by  the  Lonts,  upon  oath ;  and,  i\  ii  shall 
be  proved  there,  will  punish  it,  acc^rdiiiij;  lo 
our  desire ;  conceit  ir.g  ils  to  have  n«)  }M)wer  of 
an  oath.     That  for  ttie  iJi-ocedtMt  t  ii.  4.  the 
kmg  (whereto  Mr.  ^J^jeakfr  leplied)  wa.s  pre- 
pared to  have  given  au  answer ;  but  did  for- 
bear, in  respect  many  there  were  no  niemliers 
of  this  House. 
Mr.  Sii.ltcUor,    That  the  king,  as  soon  as 
:  whidi  made  the  king  and  Lortis,  in    Air.  Speaker  and  the  House  gone,  the  king 
MvtKttt  Mdnde  them  from  judgment  in  {  committed  the  e\*amiuatU»ii  t>f  ¥iu\  d  to  the 


ntii  poM  bere.  If  any  speak  against  this 
Hme  ikwd,  we  send  for  tiim.— No  ques- 
te,lM,  nfm  his  coufesswn,  we  might,  for 
Iht  MM  tftreaid,  punish  him  ;  aii«l  may 
4 kirn,  without  oath,  if  the  House  satistictl 

^  hOw.  Moore.  To  acknowledge  no  error 
■Mrjutoient,  nor  to  contest  with  the  king. 

Ufa  fneitiQii,  to  address  ourselrcs,  in  this 
OM^IikiB^jestv. 

M/KUttf  the  Wards.  Tliat  the  Speaker, 
wiAe  whole  House,  may  present  our  re- 
^tobnajesty.  So  Mr.  Wandesfbrd. 
-  ^Ktik.  Kteh.  Because  nothing  crosseth 
•V/ifaseni;  but  the  precedent  1  H.  4,  which 
■apnatreoDrdlbr  us,  made  in  that  pailia- 
■a^  wherrin  the  most  prodigious  fact  done, 
Ihtcf trill  pirKimcnt ;  which  this  House  then 


iili 


The  tact  was  upon  king  Ricliard 


A.Gn|f/r.  If  any  foreigner  offend,  just- 
ffi>f  aeoiber  ot*  this  House,  in  words,  we 
^"^^^^^  ind  punish  him. 

^J^Chtmbertfiyne.  Fearcth,  tliis  going 
{^■e  kaff  wiQ  procure  a  distaste  betiveen  tlie 
Mudus. 

Mr.ARpc  Well  resolved  to  go  to  the  king. 
Tifke  hisi  iidl  satisfaction  in  some  things. 
™*<ijtt|any  execution  of  our  judgment. 
£*y  ywies  made ;  if  any  man  of  the  House 
f*  wtei  Fio> d,  the  king  woukl  not  have 
Jy*  •faW:    Much    less    our  judgment. 

if**  with  die  king,  of  our  right.  To 
*y*'Wr»easoii8,  moving  us,  in  this  parti- 
JJj^J*^  to  proceed  as  we  have  dons  : 
^f^pienl ;  not  to  dlscbiim  our  right,  but 
*J*J*ieli  search  precedents. 
^^'^Seymor.  To  have  only  ten  or 
y*><tend  the  Speaker  to  the  king.  No 
*J*^  the  king.    To  search  precedents 


^^•Slnmde,    To  leave  it  to  the  king, 

Jj*^.^  whole  House,  or  a  select  number, 

•  SITl  ^  Spoker  to  the  king. 

'  ^  'Kneii  Fane.    Accordant. 

^  Atf.  Jtrmifn.    A  committee,  to  with- 

~  tkntelres  pieseiitly,  to   set  down  in 

?Pf  1  whit  shall  be  presented  to  the  king 

S'  ^  w.  Mounia^em.  Not  in  our  jfower  to 
^  wfaedier  the  whole  House,  or  fen-er, 
^^^totheldng.  To  leavethat  to  hun. 
rr^Kntuy,  Cbuicellor  £xche(]uerf  Master 
'"'WirdB,  pieaently  to  signify  XA  his  ma- 
^TlheMre  of  die  House. 
1^2*'^  t  <^  W^rdot  To  take  especial 
y^fltfhitt.  Rkshe's  motion,  to  answer  the 
||2'*^lH.4.  Neither  to  accuse,  or  ex- 
^Mdires:  To  shew  our  judgment  to 
g?j^  hastened  by  our  zeal.  To  de«re, 
J^  wH  deal  with  us,  as  a  fiither. 

May  4. 

^•flMrvfsry.   That  die  king  hadi  omb- 


attorney  and  him.  Floyd  denied  it.  That 
the  attorney  told  him,  he  had  denied  his  scan- 
dali^iii«4Wif  sir  Francis  Kvers,  till  he  showed 
him  his  hand-wriiintf ;  which  he  again  now 
absolutely  denied.  That  t!ie  kiiig,  upon  this 
denial j  the  more  desirous  to  |>uni:-li  him :  And 
therefore  leaveUi  it  lo  the  judgment  of  the 
House,  whether  to  insist  further  upon  their 
right,  of  judging  this  business  here,  m'  io  go  to 
the  Lords  in  diis,  as  we  have  done  in  all  other 
business  this  session. 

Sir  /.  FerrOi  t.  To  have  it  considtTet^  whe« 
ther  we  be  a  court  of  reconl,  aii(,l  ^vhcther  we 
liavo  not  power  to  give  an  oaili. 

Sir  W.  Strowde.  This  no  seasonable  motion 
now.  To  go  to  the  Lords.  That  cxauTination 
n  ill  be  long,  and  will  defer  his  puiiishment. 
To  go  about  that  now,  which  may  uest  aiU  ance 
the  i^ood  of  our  countries. 

Sir  Ho.  PhiUippe*.  In  our  judgment  as  much 
love  to  die  king,  and  his,  as  ever  from  any 
House  of  Commons ;  and  as  amch  duty,,  in 
desiring  the  execution,  as  ever  from  any.  To 
sit  down^  and  meddle  no  moi-e  in  this  business. 

Mr.  Afford.  This  House  never  so  shaken 
in  Judgement,  as  now.  Our  judgment  gene- 
rally known.  That  done  by  us,  in  one  case, 
for  the  king's  issue. 

Sir  D.  Diggt  concordat  with  sir  Robert  Phil- 
lippes. 

Sir  Tho.  Jennyn,  accordant.  If  any  could 
maintain  what  we  have  done,  would  never  sit 
down.  If  that  true,  which  we  have  heard 
here,  this  the  greatest  court  oi'  Eugbind,  and 
die  least  power. 

Sur  Wm.  Heriferte.  We  have  given  our 
judgment :  The  king  may  stay  the  execution : 
We  cannot  help  that. 

Mr.  Mallet.  Tliis  a  court ;  where  law,  and 
discretion.  The  b^t  discretion,  to  leave  this 
matter  now. 

Sir  Edio.  S^ckvyle.  While  Floid  iiotpii.i:sh<- 
ed^  we  ail  sufter.  No  kiss  of  privilege,  for  the 
Lords  do  concur  with  us  in  the  senteuce,  iici  to 
confirm  ours. 

Sir  Gtor.  Moor.  Thinkedi  yet,  they  gavit 


ft 


ibis  judgfiuent  iutU^  &s  well  as  Justum:  For    ment  shaH  be  ealered,  or  not.    So  mr  "Wm-^ 
done  upon  ^ood  reasoa.     An  oath  not  requis^ite    Speiicer.  ^ 

ill  all  oausi'S.     Tlie  matter  nut  obsouro,  but        ^Ir,  6»i^ta.    Tbat  tbc  earls  manbaU  ^^   it 

Iilaiu.     Not  loj^  tutlu*  Lords.    To  rvst  berv.    case,  upou  compiaiut  would  have  punidietf^^  i 
for   tbat   bis  maJe^t^    niay  btay  tbe  cxvcu-    \vt  (..\;iuiiDeuot  uponualh.     Kinm'eth  tk^^ 
tion.  liL-  nw  u  cast*.  ^-*^^ 

8ir^M--.  Ct"*::/.     "We  ilio  sinews  of  t lie  com-        Sir  i'.it*.    KVn.'ToWA.     Thai  the  judgl^^^^f 
niOxivL-alib.     To  refipirJ  our  K\aii\.  aud  tb»^    rii;l!ily  g-i\e:i  t\icaiiou  may  be  starred  bv         ^ 
liouourot'  iiiis  llxiu>e.  No:  lo  ^o  tu  the  Lord^,    ki.iu: :  So  hatti  S.oti.  ••!*  judgments  given  oj 
to  uiovfthcia  tu  patch  up  uiu-iaulis.  Lr>rds. 

Sir  Tho.  lii.u..  The  bLimiS  ol'  this  Hous^'        Xr  i.' .' ..  Cor^.     Jr.i.l:rr!^eut  DOttobe  BtaqT^ 
inuci)  sbaki'n  i;«iu.     Tiiinktth  oar  ju»'n;:iKiii     lor  G.vii  Sja!.  xr.  vri  where  felony  or       ^ 
ri^hiU  iT^c-u  and  ui:i\  stcui-!  upi>n  reeorxl  hort'.    »ou,  liie  Lixi^  may  sia\   the  proeeedinj^. 
»s  o.ir  i'Wuu.      rh'.i  liiiH  canuut  Tii'W  o-nio  ii^    judkrn:eii(  i::;^^!  tc:' '.be  kiuif:  Forhia 
iLi  l^trdss  «-ithtT  \Mth  us,  ur  ultlumt  u>:  Noi     Auy  man  k^jV  stJ^  hi>  own  suit.     Not  to  i, 
wiihus,  wLthiuit  uur  ili>hi:ra^'c  ;  lur  wit  hunt  us.     umi   the/ni.rincai.     £«*^ty   ntan«  though 
beoau>o  oaunoi  lake  ii<..:;iv  «.•!  huv  puldic  ajt'ii^^  -     sent,  ii^^ol^ttl  in  uiejud'juient ;  yea  ' 
raiuv  ^a<  I'.ils)  ^«iiuvut  compiaiut  turrcut'triim    u.oiii  lus,   ibouirb  he   ui' a  contrarr 
beiv.T.  C -UKori  jiic^rd,^!.     The  judgment  already 

Mr.  Trt.. surer.  Nut  move«l.  or  i mended,  we    ured.      The  km^  niav  ^tfay  the  execoti 
sh«iuM  i.iic carry  tliU  to  the  i>'nis, i<r OHisciit  t>    \« here  be  unly  )^rty.    In  ap{ieal, not  to  alaj i 
it;  bill  iCavetliit^  o.nir>e    tbei'irof  to  the  kuic*    in  iudii^iiucr/.  i.'the.-wise. 
and  s|)cak  m>  mure  ut' it.  ^  Sir  rha.  Ui.T::n.  First  to  rend  the  judgaiiL 

Mr.  .>ti'i^-ri.  uccoHam.  Mi.  Xi/i*j.\T.  WiUuot  ffoabout  to  di 

Njr  II.  W'.'trri^U'H.  Thinkeih  not,  bat  we  ,  them  trom  tiiis.    N^4  to  ilo  lit  thin^ 
b.ive|Ki\«ertou:i^i'  an  oath:  And,   tor  prece-  .  $i>r. J'<Iy.     Tiiat  this  question  grew  by  a 
dents ;  t.Mry  privevlcni  had  a  hi^inuiu^.  sa^re  trom  the  kiu^. 

Sir  H.  J  lV/c.  To  pi\Hreid  m  this  hy  \w'  of       Sir  Kdw.  Cuke,  Sir  Ro.  Phillippes,  Sir.  M«K 
bin.  '         :  Mt.   Alt-.*id.   sir  San?.  Sauds.  Master  of  IM 

S-r  ri.v.  CiUs.    Not   to  wave  our  riirhi.     Uands,  sir  Nath.  Rich,  sir  Edw.  CectIL,  fl» 

Til  ink*,  ih  iu  his  cmcience,  we  have  done  well,    senily  to  retire  into  the  committee  chaiwr, 

and  iiid;ci.iUy.     Ni>:  m  c**  >'^  ^i^  Iv^rds  in  this  ,  and  tu  set  down  iuuTiting,  the  jmb^ment.    . 

i*uui^se.     Tu  Iea\eii  to  tbckiii^,  and  ^vith  the  ,      Sir  KJiA.  Sti£kryl*\  Tlwt  all  our  prooeedia^ 

kiuj;.  may  be  entered  bcie,  and  ke|>t  as  Keconli. 

.\L:sttr ,yt' :f:e  W,.rJi.  S^>rrv.  we  dri^in  to 

thi-i  strait :  lUii  much  lUcti-^ii ;  Cauuo*.  jv  iock  j  ■ 

frumuurjud&rutem.     \^f  ha^c  appeuit^l  L*ii:e  I 

kinv: :  Cancono  hiirhcr.     To  v:o  no  limir.  |     TlieRcf^^n  iu  Grey's  Debates  of  the  ipiuhll 

Tu  ^  oQce  apiiii  to  tiK'  kiu^r.  and  lo  Ut  hiiu  '.  made  m  the  Ht'useot*(.'ommon<  in  the  pramH 

know,  what  n  c  ha^  c  dune,   bath   b.xa  i.u{  uf    of  the    IVoceediuo^  atf;;in>t  Tbompson  H  tf 

our  zeal  and  love  to  him.  aud  :u>  Ctuidr^'u.    Tu  -  fuUtw^j  : 

desire  him.  i'uct  aiTiiu.  to  do  ^«  Lib  i;».  as  a  la- i      ,-  •     n      _     •• -i.    ^         ».._- 

tber ;  and  uoi  to  put  u.  o.  cr  tu  the  b.rds.  but        ^  i*^;"  .^  ^    --  '•  ^'^  J}'^^""  '^   .^^,'^^  ^T??£ 
biin^lt'  to  end.  apivvru^d :.» .  \,i^)::k  uu  ivmplamt  agamst  hUB 

Sir&rt.  i»: ;  »■*.  Nouif  raUr  of  this  Hou>o  "  '  i  •  -  •■•  •. 
Ou^t  atur  a  qucsiA'C.  to  qi'.rMi-n  ttie  )vn-.ti- .  S.r  il^':<ii  Arjr\.':...'.\  1  wotild  not  wmk 
of  thi>  House.  Tb;^  ilu  j»;>Liii<iii  i:i\<.u  out  b::u  t**  Ki^u.  lo."  tV-ar  iliat  be  is  their  chap- 
of  a^tat  ic^\  and  \'*\f  m  it.s  mj;,«.>:\.  T^*  bviii  alrv-.i'l\.  biii  tuoui\lb>auish  him  to  Geneva; 
let  the  wurM  LiUtA*  r.«»  p  qiie  I>«.t»t.i:i  itic  kini:  for  he  sav*.  ••  Tmy  -re  wi.»r>e  than  thedinl 
aud  his  pt-iiplc.  N>  t  trr.>i.i\';i>.  iu*r  c.^^i.-j  a^  :  that  aiv  lVv^*Atii-i.ins."  Put  him  into  the  Ul 
iii.:.i:c.     A  o«r.rx  i»f ''cc-n!;    Thttivre  iua_\  ',  if  Iwuishaicr.i'it  tbc  \iapisis. 


f1\e  an  «.Ath.  Dtsude  !•  >«.ih  n."»  pnvilcirt..  j  S!r  Fr .:•:.*.*  il  ;Tii'.^-;t»n.  I  take  this  kh 
Ivw  K':ij:  lia^citir  L<<r.lsd..>::>Mlij  Ci^c  ju.!^.''  sIiuns  to  be  of  ^rent  iXHuxTiinient.  Whnl 
mcut>  in  (Mf^!an.rnt?  Tho  kiii^;.  .ls  be.ii:.  (>:«-  >  sptak  acaiust  such  m«n  as  ibese,  I  speak  1^ 
sent  lun,  .ii'u  iu  uli  liis  ri^v.:-*^.  ^i  e  puai>h  iLc  cburvb.  Turtx-  thrives  iliis  report  nua 
here  nbi:s>.^  t*  ibe  !it.:k;U>N  •.four  liouse.  ■  u|K>n.  First.  Uud  ai»d  uu^tudent  redectieasM 
yea.  t'Mluir  >4.n.im«:  n.Lcii  uv.to  to  tl'.e  tlu- kins;  ;  and  ii  is  our  c.uty  to  take  notice rf 
Lilly's  hji»»xl.     Ti  <.:,:vr    li.c    ;i,<iij-i:iii:t.     Let  i  >uch  lutu.  Next.  1  r.^«ir  beard  an v  manso COB* 


nuc  upvn  a  > « ji  ii.'.riHiciT::.      I'c.e**.  did  >%i«:ir.    ht.\a\\ — lie  u^.  roikvs  in    Jimi  out  ot  the  paM 
*^  Ij***^ •**■■»•  i>  - -ii^i  ir^v':l»|\,   h«.r\,   as     iiiiin^>v«*:i'j:  tbes«*  *iiH*in:ws,  aiM  this  inagniDBI 

*«r  IPfc*"'*'**'"''''"^  ''*'"^  a  Uvk.'  .  hisoiiti'vv.  iha[   i  uusik^nt  iu   imenalof  MT- 

%8r  FK-s.-ii^^- .    .r-,  ;...i   j;-  j-^  ..^  .,   f.^     L.,i,uiii.  i:i   ibe  KMut>s»  of  the  papists.     Itii 

inptua  to  t*A(.  ijUfc^vivu.  wLtihtr  iLe  jud^-  [  «»oriliy  jour  coorsideriUi.Hi  what  to  do  wJA 


STATE  TRIALS,  32  Charles  II.  l6S0.^Pnvilege  of  Parliament.      [122 

one  of  the  raosit  capital  cities  of  the  kinetlom  f 
His  punishment  cannot  be  too  great.  He  has 
not  only  delamed  the  king",  but  spoken  re- 
proachfully of  the  protestant  religion,  and  of 
queen  Elizabeth .  So  one  protestant  would  do 
it,  and  he  has  cast  the  plot  upon  the  protestants. 
Should  you  pass  but  a  light  censure  upon  this 
man,  he  would  laugh  at  you.  Thei-efore  1j« 
sura  that  in  your  vote  you  hit  upon  every 
thing  he  is  guilty  of.  Two  or  three  gentlemen 
may  withdraw,  and  word  the  question. 

Upon  proposing  the  Vote  against  him,  (see 
p.  7.  tup.) 

Sir  William  Jones.  You  have  made  a  just 
Vote,  but  if  you  do  no  more,  he  will  come  off 
too  lightly.  You  may  trust  him  now  with  this 
Vote  in  an^r  judicature ;  but  1  would  stop  the 
mouths  of  his  fellows,  and  in  the  face  of  all  lh« 
workl,  I  would  publish  the  evidence  against 
him,  and  let  tlie  cliurch-nien  see  what  sort  of 
sons  they  have.  Tlicy  who  think  liim  too  little 
fur  impeachment,  think  him  too  big  for  a  bill ; 
but,  to  preparo  the  Lonis  and  all  men  for  his 
sentence,  1  would  inmcach  him. 

Colonel  Titus.  No  man  thinks  that  this 
Tliompson  deserves  punishment,  and  a  severe 
one,  more  than  I  do,  but  I  am  at  a  stand  what 
that  shall  be.  You  are  mcived  for  '*  Banish- 
ment with  the  most  considerable  papists.**  I 
do  think  him  a  papist,  and  much  more  because 
he  calls  himself  a  Protestant.  1  do  remember 
several  persons  you  have  impoachetl,  an  earl 
into  a  duke  [Laudeniale,]  and  an  earl,  almost 
into  a  marquis  [Halifax.  He  was  funm  after 
so  created.]  And  some  into  being  public  mi- 
nisters, llie  effects  have  been  like  thunder 
uiion  mushrooms ;  it  i\(ws  but  make  them  grow, 
not  blast  them.*  Dr.  Muinwaring  was  inqieach- 
ed  by  the  Commons,  and  was  brought  to  the 
bar  *on  his  knc^es  in  tlu^  Lords  House,  and 
he  there  recantcrd  what  he  hud  writttMi  and 
preaclied.  He  was  Dr.  Main  waring  f  More 
you  impeached  him,  and  was  lonl  l»isliop  o£ 


ID.     I  have  heard  of  a  precedent  of  sen- 
I  such  a  peison  to  ride  through  the  city 
m  face  to  the  horBe*s  tail.     If  you  bonisli 
:  is  tlie  %ay  to  make   him  a  cardinal ; 
ompan^  asyou  intend  in  your  bill  is  pre- 
it  to  him  :  oome  men  we  see  will  strug- 
rd   to   keep  the  protestants  from  being 
,  and  1  must  believe  that,  at  the  bottom, 
ore  popery  better  than  the  protestant  re- 
»  e  may  raise  a  dispute  amongst  the 
;  though  tlie  man  seem  too  Uttle  to  hn- 
<  yet  his  crimes  arc  great  enou]^  for  the 
hus  of  England  to  charge  him  upon; 
I  the  bishnps  see  what  kind  of  cattle  these 
SI  scandalixe  the  church.    Therefore  I 
I  Rsolve  upon  some  questions,  viz.  '^  ^JTliat 
I  bnpndentlv  scandalized  his  majesty  and 
sicstaiit  religion  ;"  and  when  you  have 
oe  to  the  vote  upon  him,  the  best  way  is 
ke  him  exemplaiy.     1  was  thinking  of  a 
hill,  to  pot  a  character  of  disability  upon 
for  really  there  are  such  a  multitude  of 
e  IB  tlie  plot  (and  that  borders  upon  it)  that 
isoot  well    impeach  him.     Such  sort  of 
CIS  these  absolutely  endeavour  to  destroy 
Uctrine  ol'   the  church,  and  to  bring  in 
tt,  and  such  as  tliose  tliat  foment  dis- 
iH  amooffst  protestants. 
mot   Maynard.    This  Thompson  is  as 
piT  a  man  as  can  be  ;  he  has  scandalizcMl 
Hs^  fallen  upon  the  dead,  that  most  exceU 
pineess  queen  Elizabeth,  and  scandalised 
piMuiants  in  the  pulpit,  Ixsides  prosecuting 
I  fir  not  coming  to  church  when  the  church 
nvere  shut.     I  wish  you  coidd  punish  him 
«  ^te^tny^.     I  think '  he  that  scandalized 
y*n  of   Doheiiiia  had  sentence,  by  im- 
■BBnt,  to  ride  with  his  face  to  the  horse's 
^*  ta  I  nfiuld  not  send  him  bc*yond  sea, 
'Jot  ks  will  he  favoured.     I  would  fain 
tMv  tftf  fathers  of  our  church  will  look 

•  4b  man.  1  wonder  that  he  has  been 
fc*lhithe  church  so  long.  I  would  im- 
Ms  kim  to  the  I^inls,  and  then  sec  whether 
■iMV  mend  their  judgment  against  liiui,  in 
■i  Wbirh  will  be  iinich  more  terrible. 

•  Wtf.  Lff.  It  is  necessar}'  that  you  take 
■J  •!*  this  matter.  Tliis  spirituni  sword, 
■■tjbiy  all  compbin  of,  docs  the  mischief, 
■e  hdhip  of  the  proper  diocese  had  done  his 
^1  he  had  savcil  you  this  labour.  Therefore 
■■ii  Mss  a  vote,  "  That  lie  is  a  scandal  to 
**■  nioclioii,  and  that  he  has  dishonourtnl 
tmm :"  ud  add  what  you  will  else  to  it. 

K    The  great  tendency  of  the  evi- 

**  That  he  defamed  and  cried  down 

Pray  put  that  in  its  proper 

'  Hfsi.    When  one  considers  what  mon- 

are  against  our  liberties,  and 

govemmeDt  both  of  church  and 

I  are  a  sort  of  protestants,  who 

k  ^.the  profession  of  the  j>rotcstant 

;1»  ayare  the  protestant  religion .    And 

I'thH  Hr.    Thompson  do  this,  but  in 

*  See  Fbyde's  Case, 


*  The  like  happened  here.   See  the  note  at 
the  beginning  of  tiiis  case,  p.  1 . 

fHee  his  "Case,  vol.3,  p.  335,  of  this  Col- 
lection, where  it  may  be  noticiHl  that  one  part 
of  the  judgment  prunouncril  against  him  was, 
"  That  h(^  should  be  for  evi-r  disalileil  to  have 
any  ecclesiastical  dignity,  or  s<H'uiar  office.** 
On  the  18tli  of  April,  1(340,  in  the  ucvt  parlia- 
ment that  met  after  iliis  transactiou,  the  l^nls 
took  up  this  ImsincKs  again  ;  and,  huvini;  n;ad 
the  declaration  of  the  (aiiuuioiis  against  the 
now  bishop  of  St.  i>avid*s,  and  the  M.'iitciict'  <»f 
the  Lords,  they  ri'ter  the  whole  to  their  C'om- 
niittee  of  l^ivilegtN,  withlc:iveto  the  bishop 
to  allege  any  thing  before  the  said  Coiniuiltee^ 
on  his  part,  either  by  pardon,  licence,  or  otlier- 
wise.     On  the  1\sx  of^  April,  they  order  the  re- 
cords to  be  brought,  that  the  House  may  de- 
termine this  cause.     Hut  on  the  S8th  of  April, 
the  king  sends  a  message  by  the  fjonl  K»'p«n-, 
**  That  nis  majesty,  understanding  tlK-ro  w\\% 
some  question  conccrnixig   Dr.  Mainwariug, 


123] 


STATE  TRIALS,  32  Charles  H.  l^SC-^-Cur  oj  Jame$  Stetie.         (i  24 


St  David's  after.  Some  have  moved,  "  That 
this  Thompson  should  ride  with  hisfaiceto  the 
horse's  tail  ;"  but  that  would  be  something  se- 
vere to  one  of  his  coat ;  but  seeing  he  has  for- 
got his  coat  all  his  life,  the  Commons  may  for- 
get it  for  one  day.  I  would  impeach  him,  that 
the  bishops  may  see  what  thdr  sons  have  done: 
*  Hsec  est  doctrina  hiii  vestri.'  They  have  so 
countenanced  this  doctrine,  and  have  been  so 

now  bishop  of  St.  David's,  had  given  command 
that  the  said  Dr.  Mainwaring  shall  not  come 
and  sit  in  parliament,  nor^send  any  proxy  to 
the  pariiameiit."  Thereupon,  it  was  oniered 
to  be  enter€>d  so.  Lords  Journal.  *'  I  do  not 
recollect,"  says  Mr.  Hatscll,  "  to  have  seen 
this  last  very  extraordinary  (and  illegal)  exer- 
cise of  the  kmg's  authority  taken  notice  of  in 
any  history."  See  further.  Commons  Journal, 
the  '^Sd  of  Feb.  1640.^See,  too,  Sheridan's 
Case,  A.  D.  1680,  1681. 


far  from  ponishing  him,  that  they  have  pie- 
fenred  him ;  and  therefore  they  are  thougll 
by  ill  people,  great  finrom«n  of  this  lam. 
Thereibre  1  wmild  impeach  him  befote  tk 
Lords. 

Sir  W.  Janet,  I  cannot  teU  when  fait  b- 
peachment  will  have  an  end,  wfaeliicr  evcrK' 
no;  therefore  I  would  publisli  wliat  iiagaiHl 
him,  as  a  warning  to  other  church-men,  auAfa 
justification  of  yourselves. 

Sir  J^.  Winnington,  I  kwk  apoB  Ais  dwfi 
against  Thompson  as  a  national  huaoem,  til 
to  be  part  of  the  plot ;  and  such  thingt  mfbm 
are  fit  to  be  known  to  the  world,  that  they  nnf 
see  what  is  libelled  upon  the  king. 

Mr.  Harbord,  Some  of  the  devgy  art  rt 
afraid  that  we  should  unite,  that  they  are  thnrtf 
papists  themselves ;  and  as  ibr  the  churdl  it 
£ngland  that  ha^-e  endeavoured  to  aiqpene  tK 
let  the  worid  see  what  sort  of  cattle  they  hm 
up. 


273.  Case  of  James  Skene,  for  treasonable  Opinions  and  Decla- 
rations:* 32  Charles  II.  a.  d.  1680.  [Arnots  Collectioa 
and  Abridgement  of  celebrated  Criminal  Trials  in  Scotland] 


The  prisoner,  who  was  brother  to  the  laird 
of  Skene,  was  prosecuted  at  the  instance  of  his 
msyesty^s  advocate,!  for  high  treason.  He  wus 
charged  in  the  indictment  with  being  accessary 
to  the  rebellion  headed  by  Balfour  of  Kinloch, 
and  Hackftton  of  Rathillct,  at  Air's  Moss  and 
Bothwellbridge ;  with  having  maintained  the 
lawfulness  of  that  rebellion,  even  in  presence  of 
the  duke  of  York,  and  of  the  lords  of  privy 
coimcil,  and  those  of  justiciary ;  with  having 
jiistitied  tlic  excommunication  of  the  lung,  and 
having  maintained  it  was  lawful  to  kill  him,  &c. 

The  proof  ailduccd  a^inst  the  prisoner  was 
his  own  confession,  emitted  before  the  duke  of 
York  and  privy  council  on  the  13th  November 
1680,  of  wliicb  the  tenor  follows : 

He  said,  he  did  not  know  who  were  rebels, 
but  denied  that  he  was  present  at  the  battles  ol' 
Bothweiii)ridge  and  of  ^Vir's  Moss.  He  thought 
the  persons  engaged  in  those  insurrections  were 
not  rebels,  for  they  were  in  defence  of  God's 
cause.  He  was  not  at  the  Torviood  conventicle 
when  the  king  h'bs  excommunicated,  nor  did  he 
know  who  contrived  it,  but  he  thought  the  rea- 
sons of  the  excommimication  just.  He  acknow- 

*    Records  of  Justiciary,  Nov.  22,  1680. 
t  Fountainhall  merely  makes  mention  of  this 
Case  with  that  of  t\io  other  persons,  thus: 

"  kf  ^^'"**''  '"^^^  ^^^^'  James  Skeen  condemned 
to  be  hanged  for  disowning  the  king  ;  and  on 
™  a9th  of  November  thereafter  Potter  and 
^ftewart  are  condemned  for  the  same."  Deci- 
«««»•  vol.  1,  p.  117. 


■ 

lodged  the  burning  the  acts  of  pariiameoty  bfc 
cause  they  were  against  the  Covenant;  api 
would  not  admit  the  authority  of  tlic  long  or' 
parliament  in  things  that  were  against  the  Co- 
venant. He  did  not  know  if  any  new  insume* 
tion  was  plotted ;  but  he  believed  that  God'k 
people  were  always  ready  to  take  arms  in  4e« 
fence  of  themselves  and  oif  tlie  gospel ;  that  be 
was  one  of  God's  people,  and  iiad  resolved  ti 
give  a  testimony  for  the  cause. — He  thovgbt 
tne  killing  of  tuc  archbishop  of  St.  Andrnm 
\s9&  not  murder ;  That  there  is  a  declared  ww 
between  those  who  sene  tlie  Lord,  and  tfaoift 
who  serve  the  king  against  the  Covenant ;  anfl 
that  it  IS  lawful  to  kill  such  in  defence  (xf  ths 
gospel ;  That  the  king  being  excouunnnicatedp 
and  there  being  now  a  lawful  declared  wtr 
against  him  on  account  of  the  breach  of  the  (co- 
venant, it  is  lawfid  to  kill  him,  and  all  those  wbt 
are  in  opposition  to  the  Covenant. 

He  renewed  his  confession  before  the  Cout 
and  Jury.  He  was  desired  to  deliberate  bcAn 
he  should  sign  it :  He  answered,  he  had  re- 
solved to  sign  it ;  he  tliou^ht  it  his  honour  to 
do  so ;  and  he  did  it  accordmgly. 

The  Jury  unanimously  found  the  priaooer 
*<  guilty  of  the  treasonable  crimes  and  expres- 
sions mentioned  in  his  dittay,  and  that  by  bit 
own  confession.*'  The  Court  sentenced  hun^to 
be  taken  to  the  Cross  of  Edinburgh  on  the  S4th. 
of  November  instant,  to  be  hanged  on  a  gibbeft 
till  he  be  dead,  his  hoid  to  be  separated  frcun  }m 
body,  and  fixed  on  the  Netherbow,  ami  his  whofe 
estate,  real  and  personal,  to  be  forfeited. 


STATE  TRIALS,  33  Cuaklbs  II.  iGBOj^Can  of  John  Niven. 


[126 


Case  of  John  Niven,  Captain  of  the  Ship  Fortune  of  London, 
for  Leasing-making  against  James  Duke  of  Albany  and  York: 
3S  Charles  II.  a.d.  1680.  [Arnot's  Collection  and  Abridge- 
ment of  celebrated  Criminal  Trials  in  Scotland.] 


B  pritoner  was  aerred  with  a  criminal  in- 
CBt  at  the  histance  of  his  majesty's  ad- 
e,  teCtin^  forth,  that,  by  the  statutory 
ud  the  practice  of  this  realm,  Leasing- 
Mgt  the  engendering  of  discord  between 
■g  and  his  people,  and  the  uttering  slan- 
ttipeechesto  the  disturbance  of  govem- 
,tte  crinMs  of  a  capital  nature,  yet  the 
Mr  had  been  guilty  or  them  \  by  railing 
a  the  duke  of  Albany  and  Yoik,  the 
I  brother ;  by  charging  him  with  being  in 
to  take  the  King's  life;  with  combining 
ibe  French  king  to  invade  England ;  and 
Doming  to  Scotund  on  purpose  to  make  a 
to  introduce  Popery.— Friyolous  objec- 
to  the  relevancy  of  the  indictment  were 
'  for  the  prisoner,  and  repdled  by  the 

Ham  Eccles,  writor  in  Edinborgh,  de- 
;  that«  being  in  Dvsart  on  the  day  libelled 
■pany  with  the  prisoner,  and  some  others, 
inner  inquired  at  the  deponent,  and  the 
r  the  company,  what  stile  of  reception 
doe  of  YoiiE  had  met  in  Scotland?  To  this 
Moent  answered,  <  he  had  been  received 
fag  to  his  great  quality  and  merit,  and 
a  fine  Prince;*  and  the  prisoner 


Rccenbof  Justiciary,  July  15th,  1680. 
kiwry  nninst  accmint  of  this  Trial  is  given 
ii  Fsanteinhall,  in  his  Decisions,  vol.  l.  p. 
The  prisoner  indisjiutably  fell  within  the 
■ioil  statutes  agaust  I^easing-making, 
loe  seems  no  doubt  of  his  having  be^ 
raf  the  fact.  Fonntainhall  is  deemed  a 
r  sf  amhority.  He' was  upon  the  side  of 
ui  Gbaty ;  out  any  one  who  is  conversant 
'^uis  of  that  period,  and  who  compares 
of  his  knowledge  with  the  cases  in 
.  must  be  sensible  of  the  extreme 
fity  of  that  writer ;  a  propensity  which, 
M  sneh  as  those,  it  was  very  difficult  to 
.— Hia  partialitT  is  the  less  surprising,  as 
not  to  have  been  untinged  widi 
B ;  and  those  who  have  occasion  to 
!  hilt  Journals  with  the  original  records 
r,  wOl  we  little  reason  to  compli- 


Ml  Dpon  his  accuracy. 
•MmbmU's  account  is  as  follows : 

g.  July  16,  1680. Niven,  the 
dap,  was  pannelled  for  using  some 
BBoa  against  the  duke  of  York,  viz. 
ron  the  Popish  pfotof  taking  away 
^fife,  and  oveftuming  our  religion 
nnnt ;  and  that  he  was  to  consent 
iamg  over  tha  French  king  with  an 
•firi&n  ;  and  that  he  had  come  him- 
to  make  a  popish  faction  there. 
lId  cnpa,  waA^  with  some  qua- 


replied,  there  was  not  one  of  ten  thousand  in 
England  who  would  say  so.  He  added,  tliat 
the  duke  of  York  was  in  a  plot  to  take  the 
king's  life,  and  had  combined  witli  the  French 
king  to  invade  England ;  but  the  deponent  can- 
not say  whether  the  prisoner  expressed  thes« 
words  as  his  own  opinion,  or  that  of  the  people 
of  England.  The  prisoner  at  the  same  time 
said,  no  man  had  a  greater  regani  tlian  him 
for  the  duke ;  that,  under  his  royal  highness's 
conduct,  he  had  lost  part  of  his  blood  in  hia 
majesty's  cause ;  and  that  he  would  be  ready 
to  hazard  his  life  in  the  duke's  service. 

The  prisoner  objected  to  Williain  Tarbett,  a 
waiter,  being  received  is  a  witness ;  but  hia 
objections  were  repelled.  Tarbett  deposed, 
that  he  was  accidentaUy  in  Burntisland,  m  the 
house  of  captain  Seaton,  where  he  fell  in  com- 
{mny  with  the  prisoner,  and  two  EngUshmen,  a 
shipmaster  ana  his  mate,  and  frc(|uent]y  over- 
heard discourses  lietween  them  relating  to  go- 
vernment ;  aii<l  heard  the  prisoner  say,  mat 
the  duke  had  come  into  Scotland  to  make  a 
party  tor  introducing  popery,  <  but  our  good 
old  English  hearts  woiud  not  suffer  that.' 

Michael  Seaton,  against  whom  also  the  pri» 
soner  urged  objections  which  were  over-ruled, 

lifications  ;  yet  he  was  conveencd  on  the  acts 
of  parliament  against  leasing- makers  betwixt 
the  king  and  his  people,  though  it  was  objected 
these  acts  did  not  meet  this  case,  he  neither 
having  lied  to  the  king  of  his  people,  nor  to  the 
people  of  their  king ;  and  at  the  most,  it  was 
but  tcandalum  magnatum^  and  in  England  such 
a  process  would  he  laughed  at.  Yet  his  de- 
fences were  all  repelled  and  the  dittay  found 
relevant,  and  the  ubd  sustained,  and  admitted 
to  probation,  and  he  put  to  an  assize,  whereof 
7  cleansed  him,  and  7  found  him  guilty  ;  and 
the  balance  thus  standing  e^ual,  provost  Binny, 
chancellor  of  the  assize  found  him  guihy ; 
albeit  the  dittay  in  it*telf  was  neither  relevant 
to  infer  the  pain  of  death,  nor  was  it  proven 
against  him ;  but  this  was  done  to  fright  Kng« 
land  and  gratify  his  royal  highness.  But  tho 
moderation  of  lex  imic.  Cod.  si  quis  imiierat* 
maledix  is  more  commendable,  and  such  a 
practice  should  not  be  standing  on  record.— -It 
IS  true  he  deserved  a  severe  punishment,  but 
law  cannot  stretch  it  to  death.  The  pronounc- 
ing of  sentence  was  delayed  till  the  4th  of  Au- 
crust,  on  which  day  thev  ordained  him  to  h% 
hangfcd  on  the  18th  of  Aui^fiist  theroaltor :  Bui 
the  judges  knew  the  king,  by  tlic  duke  of  York's 
mediation,  was  sending  a  remission,  at  lea*(i 
a  letter  converting  the  sentonor  to  hutiishmonty 
and  confiscating  liis  ship  and  all  his  goods,  but 
preferring  his  credltori  therein  to  tlic  link. 


127] 


STATE  TRIALS,  32  Charles  II.  1680.^- 


«  ^sinH 


deposed,  that  in  his  own  house  in  Burntisland, 
upon  a  Sunday  in  April  last,  he  was  sent  for  into 
the  room  where  the  prisoner,  two  £n|gr|iBh  sea- 
men, and  Wiitiam  Tarbett  were  drinking.  He 
heard  Niven  and  the  other  Englishman  sj[>eak- 
ing  extravagant  commonwealth  languiupe,  and 
particularly  concerning  the  duke  of  York. 
He  could  not  be  positive  tliat  the  words  were 
those  charged  in  the  indictment,  viz.  that  he 
had  come  to  make  a  par^  to  introduce  popery, 
but  tliinks  they  were  to  that  purpose. 


The  Jury,  by  a  plurality  of  Toioea,  ion 
prisoner  cruilty  of  leasing  making  agaim 

On  the  4th  of  August,  the  ooort  sent 
the  prisoner  to  be  handed  at  the  cross  of 
burgh  on  the  18th;  but,  on  the  6th  o 
month,  the  oourt,  in  consequence  of  an  i 

E council,  proceeding  ufion  a  letter  fire 
suspended  the  execotioD  till  his  m% 
r  pleasure  shoukl  be  declared ;  and 
not  appear  that  the  Sentmoe.erer  was  en 


275.  Proceedings  in  Parliament  against  Edward  Seymour,  < 
a  Member  of  the  House  of  Commons  and  Treasurer  of 
Navy,  upon  an  Impeachment  of  High  Crimes,  Misdemeai 
and  Offences:  32  Charles  il.  a.d.  1680.    [Journals  of 
Houses;  8  Grey's  Debates,  35  ;  4  Cobb.  Pari.  Hist.  1222 


House  of  Commons.    Nov,  19,  1680. 

Mr.  Vemon.  "  I  HAVE  Artides  of  Accusa- 
tion of  crimes  of  a  higli  nature  against  Mr.  iSey- 
niour.  I  think  he  is  not  here.  I  shall  under- 
take to  prove  them.  I  move  that  he  may  he 
here  to-morrow  morning'  to  answer,  and  his 
charge  will  be  brought  in.  To  charge  him, 
and  not  present,  1  know  not  the  method  of  par- 
liament, but  we  have  Articles  ready. 

Mr.  Pilkington.  T  desire  he  may  be  here  to- 
morrow to  answer  his  charge. 

Orderwl,  Thai  Kdward  feteyTnoiir,  esq.,  do 
attend  tlie  ser\'icc  of  this  House,  in  his  place, 
to-morrow  morning. 

November  20. 

SSr  Gilbert  Gcrrard  acquaints  the  Honse, 
That  he  had  Artides  of  Impeachment  of  High 
Crimes,  Misdemeanors,  and  Offences,  against 
Edward  Seymour  esq.,  one  of  his  majesty's 
most  honourable  Privy  ClJounril,  Treasurer  of 
tlie  Na\  y,  and  a  member  of  this  House  ;  and 
then  procetnlwl  as  follows : 

Whenever  such  Articl«\s  arc  bronjjht  to  my 
hands,  and  I  am  satisfieil  with  the  proof  of 
them,  J  take  it  to  be  my  duty  to  exhibit  them. 
1  shall  only  say,  1  have  knoCvn  this  ger.tlemun 
a  long  whde ;  ms  fortune  %vas  raised  iu  this 
House,  and  how  he  comes  now  under  suspi- 
cion of  these  Articles,  he  can  best  answer. 
This  srentleman  (if  what  fame  says  is  true)  has 
hiboured  with  industry  to  prorogue  or  dissolve 
this  parliament,  which  all  think  will  ruin  the 
kincT,  religion,  and  all  we  have.  I  make  this 
U!seofit,  that  the  king  kno-.vs  whether  S<*y- 


mour  has  attempted  this,  or  not.  I  ho| 
will  think  that  none  guilty  of  snch  crime 
fear  a  parliament.  One  tilling  more ;  wit] 
impenousness  did  he  put  the  Commons  h 
tempt,  and  did  talk  of  *<  Wind-gfunsT* 
lieve  you  will  find  matter  against  him,  ti 
him  to  the  Tower. 

Air.  Seymour.  In  order  to  methods  of  ] 
ment,  the  reading  of  the  Articles  must  ha 
motion  seconded,  and  I  do  second  it,  th 
Articles  may  be  read. 

The  Articles  were  then  read,  and  i 
ibUows : 

Articles  of  Impeachment  of  High  C 
Misdemeanors,  ^id  Offences,  a^ins 
WARD  Seymour,  csc^.,  one  of  his  ma 
most  honourable  Pnvy  Council,  Tre 
of  his  majesty  \  Navy,  and  one  of  the 
l)ers  of  the  House  of  Commons  now  I 
hameut  assembled. 

"  1.  That,  %vhereasthe  sum  of  504,97 
Qd,  was  raise<l  by  an  act  of  parliament,  1 
s|K?edy  building  of  30  ships  of  war,  andtl 
appropriated  to  the  said  use,  by  whicli 
was  particularly  <lirectc^,  '*  That  tlic  tre 
of  the  na^-y  should  keep  all  monies  paid  t 
by  virtue*  <»f  tlu*  said  act,  distinct  and 
from  all  other  nicmies,  and  should  issn 
]iay  the  same  by  warrant  of  the  princips 
cers  and  commissioners  of  the  nar\',  c 
three  or  mon*  of  them  ;"  and  mentlonii 
expressing,  "  That  it  is  for  the  buildin 
cruns,  riorging,  and  other  furnishing  of  tl 
,  tliirty  ships  of  war,  and  to  no  other  use. 


*  This  Mr.  Seymour,  who  succeeded  to  a  l>a- 

roiietcy  upon  the  <ltath  of  his  father  in  168H, 

aiul  is  perhaps  more  known  by  the  appellation 

ot   Sir  Edward  Seynioiu-,    hu^l    l)een  thirteen 

yewrs  before  this  tinn»   vt-rv  active  in  the  ppo- 

asecution  of  k)rd  ClaivndoM  [Sec  the  proceedinirs 

«kS:;aiiwt  the  eari  of  CUmidon,  vol.  r>,p.  317,  of 

tl»js  CoUectiou     4  Cobb,   Purl.  Hibt.  470  et  I 

4-  I 


S(H\.  and  the  Continuation  of  lonl  Clare 
LittO.  It  is  obser\  able  that  Artingtuu  [J; 
Casi%  at*te,  \ol.  G,  p.  103;J]  Si^vmour  ai 
\xtn\e  [Set?  ih«'  Cases  of  the  earl  of  Daul 
of  the  duke  of  Lee<Ls,  inf'ru'\  who  had  a 
liiost  eager  and  mosi;  bitter  in  the  attack 
Ciai-eJidon,  all  in  their  tiuns  became  the  i 
of  siuiiiar  attack^',    lu  the  Coutinuatioa 


I         STATE  TRIALS,  32  Charles  IL  iGSO.-^Edufard  Srymovr,  esq.       fiSO 


rposc  whatioeTer  ;*'  ho,  the  said  Edwnrd 
mjut,  oq  or  about  the  yc&r  1677,  beings 
treanuvr  of  tb«  Da%'y,  did,  oontrnry  to  the 
iTt,  and  coDtnry  to  the  duly  of  his  said 
I  knd  the  sum  of  90,000/.  at  \i  per  cent. 

itlonl  Chrendon,  coutains  a  passa^  M'liich 
ther  uninteresting  in  itttell',  nor  uncouuected 
diis  ofacervaticn : 

Before  the  meeting  ni  tlie  parliament, 
lit  was  well  known  that  the  fMiiubination 
stored  into  by  the  lord  ArUng^on  and  tdr 
MB  Coirentry  against  the  chancellor,  seve- 
RinberB  of  the  House  infonued  him  of 
itbey  did  and  what  they  said,  and  told  him, 
K  tlierv  waia  but  oue  way  to  oreveut  the 
ndioe  intended  tov.ards  hini,  uhich  was  by 
01^  first  upon  them  ;  which  they  would 
le  tif  be  done,  if  he  would  assist  them 
I  such  irtfonnation  as  it  could  not  b= it  be  in 
power  to  do.  That  he  never  said  or  did  any 
g  in  the  most  secret  council,  where  they 
■ere  a!  vaya  pivscnt,  and  where  there 
e  firqent  'occasionsof  mentionioGf  the 
9eedin2S  of  both  Houses,  and  the  be- 
isvof  s^^veral  mcnibcra  in  both,  but  those 
ienen  declared  the  same,  and  all  that  he 
Ivdi-l,  to  those  who  would  be  mostof- 
U  and  ioceiAsed  by  it,  and  who  were  like  in 
eesDJuncture  to  be  able  to  do  him  most 
chief:  And  by  those  ill  arts  they  had  ir- 
nalf' d  ii*aay  pci'sons  to  him.  And  that  if 
roci'i  now,  \ritiiout  its  bcin;^  possible  to  be 
»  BQCioe  of.  }f:ve  them  sucii  inibnuation 
U^ht  into  the  iirocecdin^  of  tliuse  g'en- 
ken.  thev  would  undenJce  to  diven  the 
«tbit  threatened  him.  and  caase  it  to  fall 
KikK  others.'  And  thii»  was  with  much 
HteM  pressed  to  him,  not  only  before  the 
lav  tf  ine  uarliamcitt,  and  when  he  was 
'Mmed  or  the  ill  arts  and  ucg-entlemanly 
(iee  iboae  two  persons  were  cugaj^ed  in  to 
Si  burt,  hut  after  thf  Houa»e  of  Commons 
BCeaMd  ai^nst  him  ;  witli  a  full  assur- 
**  that  they  were  uiuch  inclined  to  have 
t4  the  other  two,  if  tlie  least  occasion  was 
far  it.' 

lot  the  chancellor  wunM  not  be  prevailed 
sayinsr,  *  That  uo  provocation  or  exam - 
dioidd  dispose  bim  t>)  do  auy  tiling  that 
id  not  become  him :  That  they  were  both 
y  eounisellors.  and  trusted  by  thf  king  in 
MMl  weis^ty  aflaiis  ;  and  if  he  discerned 
tkiny  aiuiu  in  them,  he  could  inform  the 
f  flf  It.     But  the  aspersing  or  accusing 
B  ■Dv  where  else  was  nut  his  part  to  do, 
Miri  it  be  done  by  any  without  some  re- 
in upon  the  kin'/ami  duke,  who  wotdd  be 
il  Mended  at  it :  And  tliertforc  lie  ad- 
Mhbi  in  no  degree  to  make  any  ««uc}i  ut- 
S>— hii  behalf;  but  to  Icrat  e  him  to  the 
iflf  bis  own  innocence  and  of  God's 
Mue,  and  those  ^r^utlemen  to  their 
p  which  at  some  tune  would  humble 
Aad  il  is  known  to  many  periions,  and 
» Ac  king  himself,  for  whose  service 
An  WW  pcrfonaed,  (hat  gpe  or  both 


parcel  of  the  said  sum,  raised  by  the  said  act, 
being  tlien  in  his  hand:.,  for  anil  tonards  the 
support  and  continuance  of  the  army  then  rais- 
ed, afWr  such  time  as,  by  an  act  of  parliament, 
the  said  army  ought  to  have  been  disbanded ; 

tho«;e  persons  had  before  that  time  been  im- 
jieached,  if  the  chan<*ellur's  sole  indu>try  and 
inteieut  had  not  diverted  and  prevented  it.'  " 

8e(f  also  lonl  Carnarvon's  Speech  cited  in  tlie 
case  of  lord  Danby,  irt/'rti. 

Burnet  says  of  him :  *  «*  The  ablest  man  of  his 
par^  was  8eymour,who  was  the  first  Speakers^' 
the  Uousc  oi  Ooumions  that  was  nut  bred  to  the 
law.  He  was  a  man  of  ((rcat  birth,  being  the  elder 
branch  of  tlie  Seymour  family ;  and  was  a  grace- 
ful man,  bold  ami  quick.  But  he  had  a  sort  of  a 
pride  so  |>ecidiarto  himself,  that  I  never  saw  any 
thing  like  il .  He  had  neither  sluune  nor  decency 
with  it.  He  was  violent  against  the  court,  till 
he  forced  himself  into  good  posts.  He  was  the 
most  assuming  8i)eaker  that  ever  sale  in  the 
chair.  He  knew  the  House,  and  every  man  in 
it  so  well,  that  by  looking  atiout  he  could  tell 
the  fato  of  auy  question.  So,  if  any  thing  was 
put,  ^vlic?n  the  court  party  was  not  well  gamereil 
'  together,  he  would*  have  held  the  House  from 
doing  any  thing,  by  a  wilful  mistakin;^  or  mis- 
stating tfio  question.  Hy  that  he  gave  time 
to  those,  who  Tvere  appointed  for  tliat  mercenary 
work,  to  go  about  and  gather  in  all  their  party. 
^Ind  he  ivould  discern  wlien  they  had  got  tnc 
majority.  And  then  he  would  very  fainy  state 
the  question,  when  he  saw  he  was  sure  to 
carry  it." 

Ailcrwaitls,  speal;ing  of  the  parliament  which 
met  on  Mai-ch  6,  1679,  he  says :  "  Seymour 
had  in  the  last  session  struck  in  i\  ith  sucn  heat 
against  Popery  that  he  was  become  popular 
upon  it :  so  he  mannged  the  matter  in  this  new 
parliament  that  th(»u£;h  the  Court  named  Meres 
yet  he  was  chosen  Sjieaker."  This  heat  of  his 
against  Popery  was  probably  one  cause  of  the 
king's  rejection  of  him  as  8j>eaker  (Sue  the  ac- 
count of  the  proce;.HUng:s  thereupon  given  in  4 
Cohb.  l^rl.  Hist.  109V  et  seq.)  but  sutecqueutly 
Ut  tliat  occurrence  he  had  strenuously  opposed 
the  bill  of  exclusion,  which  probably  was  one 
cause  of  the  hostility  of  the  Commons  ai^ainst 
him  on  the  occasion  before  us.  Nevermele^8 
we  are  informed  by  Burnet.  (1  Owu  Times.) 
490,  that  in  the  next  year  (ICBl)  he  liked  the 
pniieet  of  declarinj^  the  prince  of  Orange  regent 
with  whom  the  res[al  ])ower  should  l»e  lo«l|^. 
Whim  the  princt*of  Orani^  had  landed  hejofned 
him  at  Exeter,  and  \iasthe  projioser  of  the '  As- 
sMriation.'  The  I'rince  intrusted  to  his  gorem- 
meat  Exeter  (of  which  he  Mas  Uccordcr,)  and 
Ih'Tonsh  irtN  i  M'  the  various  sulisequent  changes 
and  chances  of  his  coniluct  and  fortmies,  Burnet 
mentions  several  particulars,  but  f  doulit  whe- 
ther any  of  them  are  sufficiently  uncommon 
in  the  history  of  political  life  to  require  distinct 
mentic»D   in  this    place. 

Tlw?  roOowiii;r  may  serve  as  speci  Tienn,  and 
it  is  to  be  hoped,  will  satisfy  tbt  ^'ueralHy  of 
readers : 

K 


131]  STATS  TRIALS,  52  Cii a rles  II.  1  Gso.-^ProaeimgM^ga^ 


wherrhy  tlic  »nhl  two  spvrral  nds  were  ekidcd, 
anil  iho  said  ium\\  wax  roiiiiniKil,  and  kc*pt  on 
foot,  to  the  ^mii  distiiriiantv,  liazani,  and 
dftnpT  of  the  peni'C  ami  safety  of  this  kinfr- 
doni ;  and  the  nation  was  afteiwards  put  to  a 

In  relatin^r  the  ilisco^iTV  of  the  comiptM^ns 
of  tlie  ohi  £ust  liuiia  Cuinpany  in  tlie  year  1(>95, 
the   ItUhop  tolls  us,   *»  It  was  oliservt'd  that  ! 
some  oV  tlic  hoitoMi  siicklf  rs  against  the  ct»in-  , 

tuinv  did  iiisiiisiUv,  not  only   fall  otf  th*iu  that  ' 
Ktit,  hut  turiitnl  lu  s«.-ne  tho  company  as  much 
M  thry    hudai  first  endeii\  mi nnl  t%>  destroy  it. 
Kt*\inour  Miu<  ainoni;  tho  rhief  of  these,  and  it  ' 
was  said  that   ho  had  l-J.-vi"*.'.  <f  tluir  unmey 
iindiT  the  colour  of  a  har^uiti  tor  iheir  sait- 

\jrain  in  spt^kin^j  <«f  kinp  M'ili law's  filth 
(uniAiuoiit  \»U:ih  m:t  tor  «:;< patch  o;'  bu>ic«.^ 
«»  ;U,'  U'l'tt  i.f  Mar^-h  l7tM.  nmnit  sja-s. 
"  I  jwm  thr  view  of  tht*  Hrtus«\  ii  a;»{H.u-«ni 
u*rk-  ciidcMily .  thai  :So  Torii-s  uon^  a  ir?v  it  iivi- 
j«vil\  ;  \('t  iiir\.  to  uvJwO  toiMuattor  surr.  r^- 
»oht>l  to  cU:ir  iIh"  Ji'mj^^ofa  crcat  u»nny.  thi! 
i%tTX*0!\ir-"-C^"'l  in  au« ih-.^ it;iereisi :  R'rjMrts »c re 
hi>Mi-^-|it  tM  ihiiu  «4'  ct«\-:ii*i»s.  ihi:  ItJo  Uvn 
ATar.dil.M^slv  iMKx^id.^'tl.  hv  SiV.v;  vh»>  v.cri- 
tSH^'^'tluVl  I'.l  I  IS:   i>t-.»    |.,\sl    InJiA    Co»vp.*i»v  : 

in<t«tid  ft"  orinV:r;i:  an<i  cnii-naiRior  ■■.:>.  K 
w  hivh  «\vi  I  "» .s  « ^Tt  r  ir."iH :  i  \  lo  ?.:\  •  .t-i.  rjow  \ 
nu>si  >\'>4i>iikHi>  prs^iixv  «as  Kx^UiTi-.s  m  f  f 
K-,x:i\r  it-*:^.  ii»:vfi  j^>  l:nV  tWeTic\  thai  tht 
^fc\^^N  i:-.^^i4>\i  l■^?rrM^c>  ry  sj^m:'  -h^. 
t."*  s  h  .-:.<(  %  S^^kA  •*;r^•^.  iv  1,  >  ;li  x  wx?y  i  .:>:- 

<\vr.'. : ';  •>:;  »..:.;.  c .  •. vn  \i  •.:  :^  <>  V r: V  <- "  "-iTit*, 
f*i*i  ti>T'nrvi  .v.r.v.»ji^\  ■•.-u^.?t\i  lo  •••"•'w  Th:'.- 
c\Ti-.«  V,  Nil ^^ .::: ir.'-K  ■.  :?..>.>,v. 5>*i.  wV.-v** 
tV  r,>ai*«'  K*'!  .•■•cj^i  T^f  ]>;•■>*•«:»  «**.'»  ^«« 

K-.t  ••?\?  S.y:\».x.-.  w  r.-»  *.r  ^   .Sr*h  :?  :*»s  e^v- 

cwvT.-ki.^x  vfc<  >a>"  r.^  ^jiv  Kx^>t  Kf?.\'Y,  *s 
a  1  tv\  r.^ii  Tin  x.  S-.xiitM  SrwcY  i>^  H.cw  « 

up  vias«  A&\> ,    "ri  c.-sBc^aw.^?. 

nr  uriTM  z.'Wff  Wire  jt 

s  Ar^^ra  n  mcsk  cmhk..  oJr*?f. 70*01 

uronr  ir  oif 


1^  Iv^ 


new  charge  of  raising  and  paying  the  a 
SO0,000/.Tor  the  disbuidiDg  of  the  nid  1 
•*  Q,  That,  whereas  anactof  parinna 
tiassed  for  raising  money  fay  a  poll,  for  en 
iiki  majesty  to  enter  into  an  actual  war  a 

sisrency,  disinterested  patriotism,  and  nnn 
other  virtues.  Thus  it  is,  as  BIr.  Burfci 
**  These  gentle  historians  (yoor  Ciartn 
Norrd^-s,  and  Clamurieiix,  and  Rouge  Dn 
recortfers  and  hlazoners  of  virtues  and 
dip  their  ]feii<i  in  nothing  bat  the  milk  of  I 
kindness.  They  se<rk  no  farther  for 
than  the  prearchle  uf  a  patent,  or  the  il 
tion  on  a  ti^iub.  With  tliem  every  man  a 
3  pe*-r  is  lirrl  a  hero  ready  made.  Tim 
ot  e^ery  n::ir/s  capacity"  lor  office  t 
odtce*  ie  has  !^!V-d  :  and  the  more  offic 
irore  a'i;li*A*.  Ewry  general  officer  i 
thorn  a  T»!ar!borouirh."  ererv  statesman 
l^'Jj,  ever\'  jiidtrf  a  >T[urray  or  a 
1 1.' V  who  slife ^Tre  lauirhed at  or piuea 
tlipii  ac»!i!riintacce"  ''he  iniirlit  hare  addii 
irc:\  o'h'.j-iiiced  or  detested  by  all  who  b 
kn-v4l*.<?s^  of  tL::r  characters]  "  na 
tr^'y  I  a  r.iHi^  a^  :!ie  b^t  of  them,  in  tha 
t  f  f  T« i ::!rrc .  £/j.z\ '•r:K'ti  aad  Cdhns."  L« 
a  >•> "'  I^>rd.  :»..\:.5hed  in  the  year  17C 
I  >J>;:d  ihio  l«-li«'ni:nr  passaife  fitK" 
Ff\  >  HiiTw  ot  ihr  e:Li^y  part  <<tbe  R 
Jc:i^;5  •/.'•e  Sc^>r.-^.  becau^  it  exhibiua  : 
r»M;<  p^r:  f  Sr-i  nx*  r's  condoct*  and  a 
c-is-L'  ;:  i.T*>"'^#  !i^it  on  ibe  autheniz 
i"o  tr.-.7.-.:i:  -JTHit-.-s  %-l"  En^■b^b  hi^toa 
•r'.-;.  •,-  •/'■•:  :.-ir.s5.- :i  -s*  which  occurrec 
."r-f  ni^i:  of  i**e  ■  trL:.ii>r^t  in  the  year  U 

-  %5  •.b?  srsi :  '^Teren'x  wa*  cnaniir 
i^jer?  5.^*  r-:<  a>:«?*r  :>  bsT*  been  Vij 
^t.\>  rt.-r.  ;\5S.\  Sir  sJrti  a  (kfifite  c 
:S'-.i£*  H.:-!^  e^.r-V  y<  >--i«i!  pages  'at 
Vf  i-^iirj-f^tf  w  z-r.^'i.  be  iiSnrt*.  were  ■ 
T  t/w  ,:?;;  f.  Lr»".  E>  \r:  ^><*  11*1*  unde 
--  :>f  H:  j*<  T  I  'Tr^r^  --..^  t*^  and  aca: 
C'aftO.'C  ;  «:-£■- 3*1:7:  ■•  v  ijrb.  on  ImIi 
^^'v.  t:  irr>"»  s  :•  irai'rrrt:^  k*«e  rffr 
tzti  ^X9>,:<\  ri  •".  -  L  :•  •■•  -r.  aad  are  30» 

>iv*r".-.*  T»  tS*  i.-:r  -      >  .v  1  -razac<  T»nd- 

iT*    ^.MTtC  Tf     T.'.i^i.    "LI  ir    CfC^CT   the    1 

^^•»>.  R.i3»r  rt*  iiTtrarftL  «■  mdee 
fcWr.  » -■••Y  ir-i  .M  1:  rt7<>7is^iB  %9  the 
TVe  f*r.M  icitf*!:*.-!!  7iii*->r  LjiffB  fkc  oc 
w«renf  7^  "w^f  i«fc»t  mr :  tt  Mr.  .aftfiw. 

^iik*r> .  I  >c>ii»mM  '•j«T-"w:r  <ff  "ie  Ex 
1^.!.  aT»r  ,r  irf«iierft.  fmit^iiAf^c  t*  asrel 
uinf^t^'i*'  r  »  r  T  f^  -:-<.T.  .n^  Ti*  tyr 
Tiwfc»:frrrs  »c  ii--  ;:»:;  ■••f*;^.  li:^  ^e'v 
!ii>'nK  ww»r  i-i-^-Ti-r  *»'nii-'«,  x:  ? 
iT«ifcC  tt  ^itm.  'ibr*  im-^i^  7 

?KV«?ji    iwmnw  Titf   i-ttrtv    hrt  fSUM.  tl 
>    iiuk  fe  »ffe  uir  miM  « ite  Bf  sat ! 


STATE  TRIALS,  39  CHARLr.s  II.  l6B0.-~Edward  Stymour,  esq.       [ld4i 


mch  kine;  and  the  money  raised  by 
of  the  said  art  vi9a  thercl>y  appropriated 
nid  use,  and  to  tlie  repayment  of  suck 
s  as  shall  furnish  his  majesty  ^ith  any 
of  money,  ur  any  stores  necessary  tor 


'tlie  said  service;  and  wlicrras  c«;rtain  Eastland 

merchants  were  desired  by  bisi  inHJesty's  otficers 

i  to  furnish  and  supply  ^rcat  quantities  of  stores 

:  for  the  navy,  and,  as  an  encouragement  tlicie- 

'  unto,  were  as.sured,  tliat  the  sum  of  40,000/. 


tin,  who  were  the  legal  members,  before 
pjoeeded  to  other  business  of  importance. 
bavinj;  pressed  this  point,  he  obsei-ved, 
fever  it  were  necessary  to  adopt  such  an 
if  pfticeedini^,  it  was  more  peculiarly  so 
vheo  the  laus  and  reli^on  of  tiie  nation  , 
n  erideat  peril ;  that  the  avci'siun  of  the  : 
ii  people  to  popery,  and  their  attach- 
lonie  laws,  were  such,  as  to  secure  these 
IP  from  destruction  by  any  other  instru- 
lit}'  than  that  of  parliameiit  itself,  which, 
cr,  miifht  be  easily  ac&mipbshed,  if  there 
I  parliament  mtirc-ly  dependant  upon 
u  ho  mi^ht  harbour  such  desi^s  ; 
already  rumoured  that  the  Test  and 
s  Corpus  Acts,  the  two  bulwarks  four 
■  and  hbcrties,  were  to  be  repealed ;  that 
le  stated  was  so  notorious  :is  to  iic(n1  no 
HaTiiig*  descanted  with  tiirce  and  abtii-  ; 
m  these,  and  other  topics  of  a  similar 
icy,  lie  unreil  his  conclusion,  that  the 
a  of  royal  revenue  oun;lit  not  to 
e  first  kusintais  of  the  parliameiit. 
km's  Dispatches,  Jumf  2d,  and  4th. 
dix.  Ilumet,  2.  S2i.]  ^Vhethcr,  as 
I  tliink^,  because  lie  was  ti»o  proud  to 
say  prc^iifus  romuiuuii'ationof  his  inten- 
«r  that  the  strain  of  his  ar^^ument  was 
I  to  be  too  bold  for  the  times,  this  speech, 
ver  serrpt  approbation  it  nii^;ht  excite, 
t  receive  fmni  any  quarter  (rilhiT  up^tlaiLse 
P|Mt.  Under  these  circumstances  it  was 
MM^ht  nercssary  to  answer  him,  and  the 
I  va voted  unauimoaslv,  viitliout  further 


isBariOon,  in  the  relation  of|iarUhmf:ntary 

idines,  transiuittLfl  by  him  to  his  ciiurt, 

Brfa  he  apptrars  at  this  time  t<»  have  Im-cii 

exact,    :;iv«s  the  sauie    description    i)f 

av'v  speech  and  its  otlects,  with  Kurnct, 

can  be  little  ikiubt  but  thoir  aiHHiunt  is 

.t.     It  Will  be  found  :ts  well  in  this,  as  iti 

other  instance;:,  that  an  unfortunntc  inat- 

«,  00  tlie  part  of  the  r'.*vrreii<l  historian, 

IBs  ha&  maile  his  \eracity  unjustly  culh  <1 

■rtiaD.     He  s{)eaLs  of  Mp*yintiur's  s|Ki*ch 

a  had  been  a  motion  in  the  tei'hnical  si-ls*} 

■  Vttd,  tor  enquirin^r  into  the  elections, 

h  hid  no  eHiect.    Now  no  traces  remaining 

MhiinotioD,iuid  on  the  other  hand,  the  i^Iec- 

ihMebeen  at  a  subsequent  peritNl  inquin^d 

blaWi  ahnott  pronounces  the  whole  ac- 

PlbM  crronecHis ;  whereas  the  only  niis- 

ipWHi  in  ifiviiig  the  name  of  motion  to  a 

^^<ii  upon  the  oiu^tion  of  a  |;n^nt.     It 

"vii  cnouiH^,  cliat  it  shoidil  Im  from  the 

fibe  FretAch  ambawHulur,  tliat  we  are 

(  neoncile  to  the  reiMnla,  and  to  the 

Iht  tuigftiah  Umise  of  ComiiKms,  a 

■iihj  adMnpuahed  ratmber  rf  the 

•f  JLotm.-  KirMtt  Kncsbv 


does  indeed  say,  that  anionic  the  gentlemen  ol' 
the  House  of  Uommons  whom  he  accidental!/ 
met,  they  in  general  seemed  willing  to  settle  a 
handsome  revenue  upon  the  kinc^,  and  to  give 
him  money ;  but  whether  their  gi-ant  should  be 
permanent  or  only  temporary,  and  to  be  re- 
newed troro  time  to  time  by  parliament,  that 
the  nation  might  be  often  consulted,  was  the 
question.  fiut  besides  the  looseness  of  tlie 
expression,  which  may  only  mean  that  the 
point  was  questionable,  it  is  to  be  observed,  that 
he  does  not  relate  any  of  the  arguments  which 
\\  ere  brought  ibnvard,  even  in  the  private  con- 
versations to  which  he  rdcrs ;  and  when  lie 
aiten^-ards  gives  an  account  of  what  passed  in 
the  House  of  Conmions,  (where  he  was  pre- 
sent,) he  does  not  hint  at  any  debate  hav- 
ing taken  place,  but  rather  implica  the  con- 
trary. 

**  lliis  misrepresentation  of  Mr. Hume's  is  of 
no  small  iiuportaiice,  inaHnuich  us,  by  intimat- 
ing that  such  a  question  coulj  be  debated  at  all, 
and  much  more,  that  it  wa^i  debated  with  the  en- 
lightened ^  iews,  and  boh  I  topics  of  argument 
with  which  his  ^enhis  h.ut  supplied  him,  he 
^vcs  us  a  \  cry  i'also  iiotifHi  of  the  character  of 
the  parliament,  and  of  the  times  which  he  is 
describinp^.  It  is  not  iinpn>b;ible,  that  if  the 
arguments  had  lK>en  iL««ed,  which  this  historian 
KiipiKhU's,  the  ulterer  of  them  would  have  In'en 
expelled,  or  sent  ti)  tiie  Tower;  and  it  is 
cer-  t:iin,  that  he  would  nut  have  been  heard 
with  any  decree  of  attention,  or  even  pa- 
tience." 

It  has  been  a  fashion  vi  ith  sonic  writers  to 
tlepreciate  the  venicity  ot  liunu>t.  8ir  John 
IJuIrvmple  says,  "  it  is  a  piet'c  ot  justice  i  owe 
to  InsUiricid  mitli,  to  say  that  I  have  never 
tried  Hi  I  rntt\  tacts  by  the  tests  of  dates,  and 
ot'  ori<'-ituil  pajii^rs,  without  tindins^  thein  tvrong. 
For  which  reason,  I  luivc  mafic  little  iLse  of. 
them  in  thc^  Memoirs,  unless  when  I  found- 
th«*iii  supported  by  <»ther  authorities.  His  book 
is  the  more  rcpivhensible,  becamte  it  is  full  of 
characters,  and  most  of  them  nri>  tinged  with 
the  (Hilours  of  his  own  \\caknK.*s.st's  and  pas- 
sions:?'  1  Memoira,  n».  (As  to  the  iu:curacy 
t»f  sir  John  Ihihymplc  hiniiiir,  see  lord  Hof- 
land's  Addrt«?s  to'  tin?  Ueailer  prefixed  to  >lr, 
Fov*s  Ilistnry  of  the  e-iily  part  of  the  rcigri  of 
Jiuiii's  the  Scx-oiul,  the  Notes  to  4  Laing's  Hist. 
of  Scotland,  ami  the  Case  of  lonl  Uussell,  a.o. 
lOH.i,  iiijtu).  And  Dr.  Johnson,  in  more  than 
out?  passage  of  his  works,  gives  countenance 
to  the  anputation.  it  may  therefore  not  be  im- 
proper to  priveiit  some  additicmal  ti'stimony  to 
that  alreaily  nd'lucetl  by  .Mr.  Fox  in  favour  of 
tlie  bishop.'  Harris,  ('.'  life  of  Charles  2,  9.  Note 
{y.  Y.),  id>er  h\x\  ing  by  the  evidence  of  a  letter 
from  the   duchess  ot*  Cleveland,  verified  aa 


\3b]         STATE  TRIALS,  32  Charles  II.  \6so,^Procetdings  agaitui         [I 


parcel  of  the  said  monies  ntiMd  by  the  said  act, 
was  at  that  lime  actually  in  the  liands  of  the 
said  £dward  Seymour ;  uhich  lie  diil  acknow- 
ledge so  to  be,  and  did  promise  that  the  said  sum 
should  lie  paid  Xm  the  said  uierchauts,  in  part  ot* 
satis&ction  for  the  said  stores,  which  they  did 
furnish  upon  the  credit  of  the  same  affinuation 
and  undeitaking :  He,  the  said  Edward  Sey- 
mour, did,  on  or  about  the  year  1678,  issue 
out  and  pay  the  said  sum  to  the  victuallers  of 
the  navy,  by  way  «)f  advance,  and  for  provi- 
nons  not  then  brought  in,  contrary  to  the  true 
intent  and  picanin^  of  the  said  act ;  whereas  tlic 
same,  by  the  provision  of  the  said  act,  ought  to 
Imre  been  paid  to  the  Eastland  merchants,  who 

higlily  improbable  incident  related  by  Burnet, 
observes,  ''  From  tliis  letter,  we  may  judge  of 
the  goodness  of  Burnet's  intelligence ;  and 
reciity  an  opinion,  bv  too  many  entertained, 
that  be  Has  hasty  ana  credulous,  and  a  mere 
recorder  of  the  tales  and  scandals  of  the  times." 
Ralph  uiyustly  accuses  Burnet  of  inaccuracy 
respecting  the  Bill  **  For  the  Preservation  of 
the  Person  and  Government  of  his  gracious 
Majesty  King  James  the  8econd,*'  andasserts, 
'  That  ui^ortunately  for  us,  or  this  right  rei*. 

*  author,    tlicro    is   not   the   least   trace  of 

*  any  such   bill    [as  Burnet  had  spoken  of] 

*  to  be  found  in  any  of  the  accounts  of  this 
<  parliament  extant ;  and  therefore  we  are  un- 

*  dcr  a  necessity  to  suppose,  that  if  any  such 
'  clause  was  offered,  it  was  by  way  of  supple- 
^  ment  to  the  bill  for  the  preservation  of  his 

*  majesty's  |)er5()n  and  government,  which,  no 
*■  doubt,  was  strict  enough,  and  which  passed 
'  the  House  of  Commons  while  Monmouth  was 
^  in  arms,  just  bitfore  the  ndj«»ummeut,    but 

*  never  reached  the  Lonls.'  .?.  «M  1. 

U|H>n  which,  Mr.  Fox  remarks,  "Now  the 
enactment  to  which  the  bishop  alludes,  was 
not,  as  Ralph  supposes,  a  supplement  to  the 
bill  for  the  preservation  of  liis  majesty's  person, 
but  made  part  of  the  very  iirst  clause  of  it ;  and 
the  only  inaccuracy,  if  inilecd  it  dc-servcs  that 
name,  of  which  Burnet  is  guilty,  is  that  of 
callini;  tht^  bill  what  it  really  uas,*a  bill  for  De- 
ctarinir  Treasons,  and  not  };i\  ing  it  its  ibrmal 
title  of  a  Hill  ibr  the  Prcsenution  of  his  Ma- 
jesty's PersMin,  iVc.  The  bill  is  foitunately 
preserved  among  the  papers  of  tho-  House  of 
Commons,  and  as  it  is  not,  as  far  as  I  know, 
any  where  in  print,  1  have  subjoined  it  in  my 
Appendix." 

^  That  careful,  judicious,  aud  sagjicious  histo- 
rian, Mr.  I^«aing,  vol.  4,  note  1,  sa^s, 

"  Burnet's  veracity,  at  least  in  Scottish  af- 
fairs, is  attesteil  throughout  by  his  coincideuce 
with  Wotlrow's  History  and  original  materials ; 
aB  immense  mass  of  -ilSS.  in  the  Advticates' 
Library,  which  I  luive  carefully  insiiected. 
The  coincidence  is  the  more  n*inarkable,  as 
Wodrow,  who  |mblisli«nl  in  1791,  1799,  had 
never  seen  Burnet's  History,  publislied,  the 
flnt  volume  iu  1793,  tlie  second  in  173*.  in 
wntingfiruiniueiiiory,  Bum^  neither  is,  nor 


JiadI  furnished  his  majesty  with  flax,  heg 
and  otlier  necessaries  for  the  said  Mnrke: 
which  said  deceit  and  injustice  the  amid  n 
chants  did  complain  in  the  last  parliament. 

*'  3.  lliat  the  said  Edward  Heymour,  bci 
treasurer  of  the  navy,  and  then  and  still  havi 
a  salary  of  3,000/.  per  acmura  clear  fw  the  sai 
did,  during  the  time  he  was  Speaker  of  the  1 
Long  P^iament,  receive,  out  of  the  moi 
appropriated  for  secret  service,  the  yearly  m 
of  3,000/.  over  and  above  his  said  salary ;  wh 
was  constantly'  paid  to  him,  aa  well  during  ^ 
intervals  as  the  sessions  of  parliament;  i 
particularly  during  the  prorog^ion  of  fiil 
months. 

*'  -1.  Tliat,  on  or  about  the  eighteenth  y< 

pretends  to  be,  always  correct  ui  dates ;  and 
nis  latter  days  he  w-as  undoubtedly  credido 
But  his  naniitive  is  neither  to  be  rgerted  I 
cause  the  dates  arc  displaced,  nor  are  the  gk 
ing  characters  of  nature  to  be  discarded  bmi 
tliey  coincide  not  with  the  prgudices  of  w 
writers.  If  we  compare  his  narrative  and  d 
rocters  with  those  of  Clarendon,  and  oonoi 
how  superior  they  are  to  ever}*  cotemporaiy  p 
duction,  how  frequently  they  have  been  ■!« 
transcrilied  by  succeeding  authors;  (Hm 
himsdf,  for  instance,  who  blames  them  mM 
and  how  im|)erfiectly  their  loss  wouM  havebi 
supplied  by  morerei'ent  memoirs,  we  il 
discover  the  real  value  of  Burnet  as  an  hill 
rian." 

8ee,  too,  as  to  the  comparative  accnraej 
Burnet  and  Dolr^nnple,  the  Note  to  Mitchd 
Case,  anie^  vol.  6,  p.  1292.  In  that  Note,  In 
slight  error  of  the  press,  the  relerence  to  II 
r\'iu(>le's  Memoirs  is  printed  p.  94,  to  ed.  171 
i:)Stf!ad  of  p.  9,  4to  ed.  1771.  An  instance 
Biuni'i'^  want  of  exactness  in  his  expreHM 
which  has  been  so  injurious  to  his  characi 
for  vevacity,  may  be  found  in  what  he  H 
(see  vol.  {'»,' of  this  C-ol'.ettion,  pp.  I-IJO,  14i 
of  "  Tlir  Trial  of  Iieiand  and  others."  C 
the  Trills  of  Ireland,  Pickering,  and  Grv 
vol.  7,  p.  79;  and  of  White  alias  WhitebcM 
and  others,  \o\,  7,  p.  311. 

Seymonr  is  the  Amiel  of  the  *  Absah 
and  Achito^ht'1/  in  which  Dryden  has  raid[ 
him  very  lughly  : 

"  Indulge  one  lalK>ur  more,  my  weary  muse 
For  Ainiel ;  who  aw  Ainiers  praise  refuse P 
W ancient  race  by  birth,  but  nobler  yet 
In  bis  own  ^vorth,  nivl  without  title  great 
Th«  i^anhcdiim  lonij  I'u.ic  as  chief  lie  ruled, 
Thrir  ro:if  cii  guided,  -wA  their  passion  oooT 
No  drxtmiis  was  he  iu  tiio  crown's  defence^ 
S:i  forniM  to  siK'uk  a  lo^al  nation's  sense. 
That,  as  their  band  was'  Isr'eI'M  tribes  in  i 
N<>  til  ivas  he  to  represent  thrm  all. 
>fow  nisher  charioteers  the  scat  ascend, 
Whose  loose  careers  his  sloady  skill 


They,  like  the  une(|ual  iidei*  of  the  day, 
:V!isgiiide  the  seasons  and  mistake  the  war. ' 


While  he,  withdrawn  at  their  mad  labour 
And  safe  enjoya  the  sabbath  of  hit  tinla^'* 


STATE  TRIALS,  32  Chaalss  II.  iSso.-^Edward  Seyiaiumr,  esq.        [138 


sty's  mgn,  (1666,)  and  duriiur  a  war 
tun  gqwral  <if  the  United  I^ether* 
the  said  Edward  Seymour,  being 
r  theoommianonerii  fur  prize-goods, 
ileatiy,  nnlawfiilly,  ana  in  deceit  of 
r,  unlade  a  certain  prize-ship,  taken 
ibjects  of  the  nid  States,  without  any 
iitthority  from  the  same ;  and  did 
hduig  and  goods  of  the  said  ship, 

Ltlie  same,  without  the  presence  of 
seper ;  and  did  afterwards  sell  the 
eadinfir  the  same  to  have  been  only 
» Sugars,  and  did  account  ^?ith  his 
r  the  same  as  such ;  whereas,  in 
caid  ship  was  kulen  with  Cochineal 
,  rich  merchandizes  of  a  great  va- 


rivood,    ihe  first  two  Artidct,  I 

ake,  sindl  be  proved. 

Hw.     As  to  the  two  last  Articles, 

vdible    witnesses    that    will  prove 

tisiy  the  House. 

iiN>M  r.     When  my  charge  is  present- 

rriting,  I  do  not  doubt  but  you  will 

Dvenient  time  to  answer  it.     It  con- 

reral  parts;  as  matter  of  account, 

I  may  nare  a  copy  of  it,  I  shall  make 

swtir  as  will  satisty  you,  and,  I  am 

every  member. 

■on.     I  suppose,  the  Articles  ought 

,  paiagrapn  by  paragraph,  at  the 

dropped.) 

iri«  Wimniwgton,    If  yopr  meaning 

shafl  answer  in  writing,  I  conceive, 

•D  is  imiieached,  the  matter  is  to  be 

smined  nere.  |^But  time  being  given 

BUT  to  answer  till  Thursday,  he  went 

fmour  desires  **  he  may  have  the 
vriting."  This  is  an  IniiM*acli- 
nnt  to  have  its  determination  here, 
!  Lords  House.  We  arc  the  great 
iquirr,  and  are  to  receive  any  iufor- 
fhis  unpcadiment  being  umfertaken 
iA,  I  would  know,  whether,  if  articles 
Ird,  tliis  House  will  admit,  or  allow, 
to  give  his  answer  here  ? 
mker.  When  Answer  is  made  to  the 
len  is  the  projK^r  question,  Whether 

S'ven   in  writint;.     But  your  ordcT 
T.  Neymour  sliull  make  answer  on 
and  tliat  he  lia%c  a  copy  of  the 

November  25. 

MSHT.  Vmi  did  appoint  this  time  for 
Hi  my  Answer  to  the  Cliar^e  a<^nst 
tady  to  answer.  1  only  wait  your 
irlflbaD  proceed;  whether  I  shall 
MVHT  m  tvriting,  or  answer  the  Ar- 
Waveread. 
**^  were  read. 

rf.  You  have  appointed  this  day 
war's  Ansiver.  It  has  been  the 
0e«  when  a  member  is  accused, 
IP  in  Us  place,  and  give  Answer. 


Mr.  Se^nHmr.  If  that  be  the  mediod,  and 
that  be  the  way  to  come  to  your  end,  I  an- 
swer. 

To  the  first  Article :  I  do  allow,  that,  by 
virtue  of  tliat  act,  I  received,  as  treasurer  of 
the  navy,  498,35 1/.  Is.  H)d,  and  no  more.  That 
was  the  total  for  rigging  and  equipage  of  ships. 
What  was  more,  was  tor  the  ordnance,  whidi 
was  above  20,000/.  but  by  vurtoe  of  that,  I  re- 
ceived no  more  than  tha  former  sum.  That 
sum  knnd  Danby  paid,  according  to  the  inten- 
tioB  of  the  act,  and  none  of  the  money  was  di- 
verted to  any  other  use ;  as  appears  by  the 
accounts.  8o  that  tlie  balance  of  the  total  is 
9/.  55.  and  that  is  all  in  my  hands.  The  other 
sum  for  that  service  was  SO^OOO/. which  Uie  king 
assigned  out  of  hia  treasury.  Several  sums  of 
money  were  lent  to  Mr.  Kiogdon  ;  bat  what 
were  so  lent  were  belbre  the  ad  for  disbanding 
the  army.  4>  to  the  lending  90.000/.  &c.  I 
never  lent  above  10  or  90,000/.  and  none  of 
those  sums  were  for  building  ships,  but  of  my 
own  proper  money,  and  the  money  of  my 
frienwi :  And  frequency  the  treasarer  of  the 
nav  j^  does  make  use  ofnis  credit  for  the  Idng'a 
service.  And  this  is  my  answer  to  the  first 
article. 

To  the  second  Article,  I  humbly  present  this 
Answer:  That  it  was  in  my  power  to  dispose 
of  money  till  bills  were  broufiHbt  sigiicd,  wnich 
they  did  not  do  as  long  as  uie  money  was  in 
my  hands.  Tlie  40,000/.  I  did  issue  and  pay 
accordingly,  which  will  appear  by  the  mer- 
cliant8,who  are  now  ready,  at  die  door,  to 
affirm  it ;  and  they  did  never  call  ibr  money, 
till  it  was  out  of  my  hands.  The  time  of  con- 
tract and  dcUvery  of  the  goods  was  so  long, 
that  all  the  money  in  my  hands  was  gone :  All 
was  done  by  the  navy-board,  and  beibre  the 
merchants  came  with  their  bills,  it  was  so  bng, 
that  all  tlie  money  was  paid  out.  What  wiU 
make  this  manifest,  will  ne  the  merchants  com- 
plaint, the  last  pariiament.  I  am  so  far  from 
prejudicing  tliem,  that  I  did  serve  them  what  I 
could,  by  reflecting  on  the  hardship  of  Uieir 
case ;  and  I  humbly  offer  you  their  petition. 

Mr.  HorOord,  "  You  cannot  receive  this 
paper.  If  Seymour  insists  upon  it,  he  must 
withdraw  whilst  you  debate  it.  This  is  not  the 
place  to  hear  the  merchants ;  that  must  be  in 
another  place.  That  Seymour  should  produce 
this  paper,  and  desire  that  the  merchants  should 
be  heard,  is  a  strange  motion  to  come  fi^om 
Seymour,  who  has  managed  so  many  impeach- 
ments. 

Mr.  Sfvmour,  Tims  miich  I  know,  that 
when  evidence  is  produced,  it  has  never  been 
dcnic<l. 

To  the  third  Article :  I  had  the  honour  to  be 
Speaker  of  tlie  House  b.^re  I  was  treasurer  of 
the  navy  ;  and  I  was  in  the  condition  of  a  pri* 
vate  gt^tleman  ;  but  though  it  was  not  great, 
y rt  it  did  support  iny  ouauty  ;  but  it  woiud  not 
maintain  the  principal  commoner  of  Eng« 
land.  I  had  the  favour  from  the  king  to  re« 
ccive  3,000/.  a  year,  as  for  secret  service,  te 
avoid  laying    the  fees   in  the  Excheqiier  | 


13.0]  STAT£  TRIALS,  32  Charles  H.  lei^O.-^ProaeiingMagaiuai 


Mhich  mL«&ll  ihc  ftivoiir  I  eTcr  received  from 
len!  Oniibv. 

To  iIk-  toi'rtli  Article  :  Tlus  Article  is  of  mat* 
ters  itono  Al'kivn  yeaiN  Asr(>.  aimI  so  unceriain  a 
rfmnre'^  tb^t  there  remain  not   any  footsteps.  | 
For  theorizes,  I  nevir  roreivixl tlio  money,  nor  I 
ev«Y  w-.is  an  aeoountunt  tor  tlie  prizes.  I  aci^^  no  ■ 
ochenRi>«'  than  as  the  other  eonunisidoueTV.  Id 
the  article  vt  is  calKil  '*  a  it^rtain  ship/'  with-  j 
one  name :  When  it  haii  :i  more  certain  name, 
and  iv«  a  more  ccruiin  cliars'e,  1   shall  make  a 
more  iviT^in  ar.'SMiT  to  it.     Since  the  commit-  j 
missioners  ct"  the  prizes  %verv»  under  a  mistor- 
tuiic,  she   cc^M!  I'lvn    ui   Br »x»k -house  never 
itp^tke  Of'  «t :  nr.d  smiv  that,  there  hx«  bi'cn  ! 
mn  avt  i«f  oSii'.  ti^i.     Hut  t  iliM^biui  any  U-notit  ' 
IrvMii  a»ts  el'  jbli".  ioi.     This  article  is  of'  mat- 
ters d'.Mu*  !"i?\»>'n  \  ears  since,  and  as  there  arv  no  ] 
i\^tsiti»ot  It,  Mhi:i  persons  will   charge   me 
wi^rv'  pvir^culdrly.  1  shall  ifiic  a  m.^rv  pin^.-u- 
Ur  ans'v*  t  r. 

Mr.  M:-.:  :^':.  It'  S^vmenr  hi^  i!->a<'  as  irell 
as  he  hasstM^kt'  ■•»h\h  is  jIw,:\s  »^  .U'  he  mav 
<vme  e«  » ell.     1  liU'^ e ir.r.i he  ma .  » .ililraw . 

Mr.  N: •■:.■.-.  I  k;;i»w  wh;.:  b«-«v»uu"s  me  in 
p^ni  »*t'uur\.  I  Ajkr.oM  Ici^ife  the  ;*.is:ic«  of 
tht^  Hei;*^    :"       ' 


ih.-.r 


-..   •.■<wi.' 


I  •     «■ '« 


•',:  ".111  :»»,-,  in 
igrai:t:*.»c  r'.e  i  iv:^\  of  iv.v  l'h:\rs::\\  ar.  *.  c»>n^e- 
mem  liiiH'  :■,»  ntaki  luy  a:i>w  or ;  aiul  1  h''i»<»  to 
maLeiiiy  J ;'■-.:: .V  ylj,\-y  i.»  tlie  H"»r.'«'.  si  r..': 
ioe*er\  iMtwri-.lir  uvirb^T.  l»i*n*v  iu-.*:''T- 
fv.-.w  :.»a".*wcrivs  er.:rj.7.il.  b-.ii  1  •:  i..\  rv.is- 
d  Hi'm  •.!'.%  r,- ■.•>->•,  'T  Ji.".*rkMiead  a  ^^-'^i.-v  ;r*m 
iS- i'*."^" •>■■:■ '1  •  :'  K"^--!.  \*H*  v..;.  ^.,  a  . 
e>*r."  "4; :  >  ;  >:.,^'  i  .'.^^  "•.!' :ta- I'-dr  Vhi;^:» 
•j:  I"-.  V-.  !.^.  '.■.-.  .:•  :  •  ■'-.  ..rr;  v.  i- :  b\  ♦.'::. 
'»■.:'-  -i"    .      :.  ••  I"  ../.  1  \   -J.,  i   •     -» "     *■ 

t         "•  ■  "   --      *  i  •    ." 


.\ 


t:i.>  ~.i£..r?  r.!-.\:-  ::r 


u- 


.  ■•  v>!  .  •  c:- V  ".yt'a  Ciir.^\  -. 


AzaI  I  cur*  >*.vr\-^  ?'.*'^j..!s.  •.:\\^-.t':>  V  c*;ii-.v 
Uninj,  ic-i -'■':  iiar«^%    i»h;l  I.    T^iiC  v* -*'-^* 


*.\ 


-       -^ 

■i   a   fKiRiii'^iQ*;a    «.k'  c  .:''^    •!  ^l\ 

wtw  ia>srenfctatil  .3  ^l- >:•  -..m:- i:. 
•Ml Mi  aay  ifei*r  *>?ifu  ^-lac-.L  ..Hi:  *.'  -r  -^ry 
Tlir  fcsi  «irp  1  c^rr  ttMiJtf  ::5  -r."*  -«',  -.. .  *  .vc  ^ 
rfp«riSia»fOi.  a::.i  w  'i\  :•.  .  .-vm  ..:^* 
■»  00  «cnrt  :  ±'^-  %*^t2.  ...  »v  -^ji^ 
UMV  rf  UK.  I  ha  J  » •:  ■XT'A .. :  -Jia .  >«.  i"^  ■>,*.  I  "  .«• ; 
09 Boaiivr  it^  ik:  k*'i-'«.  :  :  ^  * ^  ■  ^'.r ,  •.  ;  i  v:  o^j: 

ftrv  *|il^:'sKj;uc--  .  JUS  -\-aa*':  s 

9%  ktOliir  Bid.  Ul*£  'hKOtl>f.    I  ikiv  w 
lUll  IMIC  WXlilrr,    JUC    *JX    \7al^ 


altn|rether  positive  in  that  question.  I 
pve  vou  one  insumee  more.  The  idt^ 
on  tbe  throne,  and  the  last  moment  o 
session,  the  House  expected  that  the  m* 
hill  should  be  broiurht  down  from  the  1 
I:  \\  as  flenied,  and  severaH  mc8saj|;es  passe 
iwi  vt  the  Hoi;5««  -.At  Kst,  it  iras  not  bn 
dow:-i,  but  met  me  at  tLe  bar.  The  king 
aDjfr^-  at  it.  I  said,  "  1  wouki  be  torn  0 
the  eliair  wiih  uilil  horsc-sc^  befcwe  I  woiil 
without  the  bdl."  The  House,  At  the 
end  of  a  se&>ion,  uere  jealans  of  some 
thatuMi^ht  be  otftred,  and  the  House 
thty  \ten?  pleased  to  lay  their  trust  in  r 
was  ii>  hihder  it.  But  the  matter  of  disc! 
inc  the  Backers  Di-bt  was  brought  in 
and  in  the  L/^nis  House,  and  if  1  could 
htH-n  prevailed  with,  that  bill  had  been  ai 
Had  1  been  a  o^rmpt  man.  that  bill  1 
ha^c  pa>se>!.  You  hare  h«^ard  of  it  in 
C«ileman's  Papers.  A  ^nileman  brougl 
a  pivfrni  fiT'm  the  otv  of  Lubdon,  and 
!h.\T  ;:-e{i::crjac  aii«i  bis  inessaj'e  were  rec 
he  w.W  ttll  V'Hi :  he  is  a  man  oi  h<inoii 
hivo  itkkc  n  no  mdirv^.t  way.  In  the  latti 
of  ib^^  p.in:j^if:;.i  th^ttbe  PKKwas  di»eo 
in,  I  *-;?:-■*«.  '.:  wJi  be  :.  i'liine-J  th^t  no 
» AS  w  i:.:ir.i:  ::i  ibe  ih«iri'nrthe  dL>cuvi 
it-  1*  ««>-.;.'•■  iwii.l'US  l-\  utuwe  cfHU 
kr,  »  :.  •.  i  ;:ai  iS-  iK-n^-'ir  to  l«e  ci'ii, 
iTi a! :■:  r.«>: :■  *-.-.  i  •  t  \-. .  •.;>**  ^  -..r  place.  1 
plitt  i  .1  ib-r  k\-i,t  :\  jv-rs*'U!*  not  us 
ri::.,\  .;  •:  1  '■■..'.  \w^.  iC-lx:- 1  B 
An-'.  :"  ;.  .  .v.  ri..^i  ,r.  ilh^;  «:.>».V^\  iii« 
■  :-.  I  ^..   .  ■  «".:   Cf^'  t'r.-.dr,.'e  c 

H   . -•       i  ......  :  .-   '..  ..•  .:r  I.' bv  liauic^i. 

:•  'O"  ■    -'  ■'  .    ■'  -     -  '      !-•  "■*>  -:^  tiir  Ti 

.-..»   i\t'   \     ■.   ;..  .*    -    •.     '-1:   i:.;'.'  mv 
■    -  ■  .  - .    '    1     ■-     ■ '  T  • 

^..T  .!."»"  •_*.  ■  A.  ...  '.      .'    i    ...  >.irr    1    di 
vi..„E.   .    -    .       .•..::■.:     _-..-»:  :;.>i  1 

\      ■  .      .  ■    .   . 


,      ■  -    .'      -  ■       I    •_ 


t.  . 


"■'*'■■   ■  -■*■*.  ■".*    .«:.*.  ".■" 


V>     ■»  ..    :    _C    ,,-i.-_,. 


.  V    .  .1,.  I  r     c  V-.-    *■      V   A  : 

'^v    I  *  ■•-    r'l..'.    :\^.        <k-:  :^'.  *wi  i^-: 

•  j«.       ■-    ■  .»  ■■  •*.-.■:■■"..   i_."    .-.■  n^   ^<  •.*  =i     A 

i,i.'j- -'Z       l  .-*•■■■'■    '<i-   i    !.;■  ;    : .»-.      >■ 
>.■    ■     .  '■   1.  ■  •-•»  i-*    .    ^ .«  '*  .      •  .    ji.T  :  ■ 

•  :»...•.■».•.       .--i  .  1.-*      .  !d,.-t;^  ;    "ii-i  .^i 


Hi]       STATE  TRIALS,  32  Charles  II.  iS^O.-^Edward  &yma8r,  esq.       [14$ 


Teneratioii  for.  I^  those  men  ywXk  abrnatl 
with  what  penetential  wonLs  they  please.  They 
ihst  have  broken  the  triple  lea^e,  shut  up  the 
exchequer,  hecaiue  I  would  not  trust  their 
tnaas^'*.  >V hen  the' parliament  is  dismisseti, 
they  will  do  the  same  thina^  i^^ain.  'Iliat  the 
Phat«stant  religioD  may  be  pre.'ierred,  I  am  tor 
thrproiervstion  of  the'rrown.  There  remains 
■y  charge:  with  yon.  Do  as  you  think  fit,  I 
w4|  do  a^  an  honest  man,  and  never  depart 
ftm  my  resolutions  of  nn'  sincerity  in  the 
nmecluit  reliffion,  and  service  to  my  country. 

Mr.  ^fiirM  Fleetwood,  He  answered  not  to 
4be  Aitide,  **  That  he  misemployed  the  public 
■MBfT.^  I  do  justify  it,  and  will  prove  it  by 
pod 'testimony,  that  the  money  <^*antofl  ior 
aa  actual  war  with  France  was  not  so  disiK>!U!d 
U*,  bal  to  a  oomrary  use.  Pray  read  the 
mz|^  article  b^*  article,  that  'we  "may  know 
JOJT  opinion  of  it. 

Mr.  Vernon.  To  the  last  Article  "of  Money 
tceetred  for  Secret  Serrice,"  what  secret  ser- 
vice he  did  that  pariiament,  he  that  received 
the  money  knows  better  than  I.  Unless  leap- 
np  oat  of  die  chair*  wus  "  secret  service," 
im  that  needs  no  proof.  Though  he  denies 
idiag  the  kind's  prizes  under  the  notion  of 
WMiiAgarg  ^r  Indigfo,  and  Cochhieal.  As 
far  A^H^  of  Indemnity,  1  know  not  iiow  that 
cu  tAf^r  hino,  aince  he  is  impeached  ;  it  is  not 
mier  here  to  determine,  but  in  the  I^rds 
House.  If  %ve  f lave  not  justice  arjpiinst  him  in 
tbe  Lords  House,  1  know  not  where  we  can 
htte  it  any  where  else.  In  the  Courts  of 
WertDOuuter,  where  the  juds^es  stop  all  pro- 
Cfedmga,  I  expect  it  net.  The  duke  of  \  urk 
uriB  nSicted  for  a  papist,  and  in  other  present- 
ments of  papists,  they  stoppeil  the  courts  of 
kw,  heonse  they  were  too  big  tor  the  law. 
Ilus  man  is  in  so  much  favour  at  court,  and 
hai  10  ranch  money  to  mnna;y^,  that  he  can 
Bake  all  of  hia  side.  See  the  effect  of  your 
•Mbhs  to  the  king ;  yon  had  put  the  Iting 
tpona  moat  grateful  act  to  the  city,  and  done 
({•od  wnrice  to  tbe  nation  in  the  country,  yet 
be,  Jeffreys,  is  chief  justice  of  Chester  still. 
HUs  address  ^vas  not  gmnteil,  nor  your  ad- 
dremes  for  pardon  of  such  as  should  come  in 
to  dbcover  die  Plot;  if  ever  men  desened 
fjtrdon,  they  did,  when  the  kl  :g's  life  and  na- 
tiDB  were  in  danger,  and  an  exception  of  **  per- 
jnry'*  was  pnt  into  one  of  the  pardon^.  What 
We  you  bad  of  effect  from  jrour  addresses,  by 
.DeaDs  of  such  oonnsellors  as  St^ymour  near  the 
bog  ?  I  move  you  to  put  the  question,  "  T])Ht 
tMreii  matter  of  impeachment  in  this  charge.'' 

Mr.  Harbord.  I  [iretend  not  tocliarm  any  man 
by  what  I  shall  say ;  but  the  first  sten  yon  are 
li  mdce, » to  read  the  charge,  article  by  article. 

The  Article  was  read  "  for  the  Money  aiven 
fcrShips." 

Mr.  Harhord.  So  great  care  the  parliament 
took  to  provide  money  for  ships,  andponish- 
■art  fhr  diverting  that  money.  Now,  in  short, 
vMier  cu  this  article  be  proved  ?  It  may  be 

^  8«  4  Cobb.  PtoL  Hi»t.  p.890. 


said,  here  is  nothing  but  an  affinnativc  and  a 
negative,  ami  so  perhaps  men  may  not  be  ablo 
to  give  a  judgment,  to  say  what  to  do.  From 
precedents  in  your  ancL>stors  time,  and  in  the 
Lonisr  Parliament,  of  Impeachments,  the  ques- 
tion is  now,  *»  Whether  Mr.  St^ymnur  is  so  far 
guilty  of  this  chai^,  as  in  your  judgment  to 
proceed  to  imi>eachiucnt.''  ^Though  he  has  an- 
swered all  the  tour  articles,  and  endeavouretl  to 
clear  himself  from  other  aspci'sions.  When  he 
was  in  the  Speaker's  chair  (:is  you  said  very 
well  in  your  specrh,  "  the  chair  had  been 
so  vitiatc^d,*')  I  have  seen  him  cast  his  eye 
about,  a!id  he  was  tom*^*  to  that  perfection,  as 
lo  a  man  to  tell  you  how  a  » oic  would  pass, 
and  spies  and  cnnssnries  were  sent  out,  to  fetch 
men  in  :  this  I  have  seen  an  hun<la'd  times. 
This  ariiele  two  gentlemen  undertake  to  prove, 
and  no  man  can  say^  but  tliat  if  he  be  guilty 
of  it,  he  has  made  a  great  breach  of  his  tnist. 
The  witness  that  can  prove  this  article^  had  his 
hand  in  putting  out  the  money  >Vlien  a  mem- 
ber cannot  in^e  good  the  ai-ticlc,  he  names 
witness4^.  Tlic  first  article  can  be  proved  by 
a  man  that  had  his  hand  lor  it,  and  Seymour 


he  (Seyiiiour.)  If  gentlemen  bid  me  name  a 
witness,  that  an  olfender  may  escape,  they  ara 
as  guilty  as  the  person  accused. 

Sir  William  Junsi,  I  have  attended  the  de- 
bate, and  this  is  not  the  time  to  bring  that  iu 
(piestion.  Seymour  Ls  a  man  of  great  elo- 
quence, and  has  showed  you  that  he  is  an  aide 
man.  It*  he  be  go(Ml,  lie  is  able  to  do  much 
good  by  it ;  if  othemise,  much  hurt.  He  has 
answered  the  articles,  one  by  one,  and  it  Ls  not 
iimeh  matter  whether  his'  answer  liad  been 
"  Not  Guilty"  only,  and  he  could  not  make  a 
better  answer.  1  take  it,  that,  us  to  the  fpreskt 
sum  given  by  act  of  parliament  for  building 
of  sliijjs,  liM  cliaiwH  is,  »•  Tiiat  he  diverted 
that  to  &Mi>tlier  purpose,  and  indixnl  to  an  ill 
pur|>ose,  to  keep  up  the  army."  His  answer 
is,  *^  Til  at  he  received  so  much,  and  the  rest 
was  the  onlnaiice,  and  was  paid  according  to 
the  act;"  and  he  has  referred  you  tohiiac- 
coiuit,  ami  tlicre  remjiins  9/.  &c.  It  may  be, 
the  money  lent  for  kc:e|»ii;jf  up  the  army  vas 
other  men's  moni,y,  upon  ih(i  credit  of  himself 
and  his  friends.  tVith  all  ihimess  1  do  repre- 
sent the  c!?ecc  of  the  cha*'j.ij'(r.  and  hi":  answer. 
I  do  not  do.iy  but  tli'it  ibis  is  a  good  answer, 
but  all  in  urTcct  ainountstj  no  nioi-e  than,  *'  Not 
guilty  of  the  charge.''  I  did  observe,  that  he 
has  iteceiv<-d  no  nu'.n':»  exiiectation  in  his 
abilities.  He  introduced  his  speech  to  this  ef- 
fect, '^  Tliat  he  was  unfortunate  to  have  a 
charge  hg-ainst  him,  but  it  would  be  less  so,  be- 
cause he  should  be  heard  in  parliament,  and 
would  call  un  Kastland  merchant  to  testify  for 
him,  (&c."  But  that  is  a  mistake.  1  am 
afraid  this  House  cannot  judge  this  matter.  I 
could  wish  tliey  had  that  power.  It  may  be, 
it  wouhl  be  more  secure  for  tlie  nation,  that  this 
House  had  a  several  judicature ;  but  I  am 
7 


143]         STATE  TRIALS,  32  Charles  II.  l6$0.— Proceedings  mgabui         [i4l 


ftfraid  this  House  has  none.  I  rise  not  to  a^f. 
grrftTate  one  point  ot'  the  char^.  If  he  be 
guilty,  Wt  hiin  be  condemned  ;  if  not,  ac- 
quitted. You  (under  favour)  have  nothings 
lo  oonaider,  but  whether  this  article  be  a  crime, 
if  proved.  Seymour  did  not  take  ui>on  him  to 
tell  yoa  this  article  wati  no  crime,  thou(|^i  prov- 
ed. No  doubt,  if  proved,  it  is  m  crime  against 
several  acts  of  parliament,  uppropriatinsr  Hums 
of  moB^,  &c.  that  they  should  not  be  uiLsa|>- 
plied  If  he,  as  treasurer  of  the  navy,  luis 
mis-spent  it,  to  another  use,  it  is  a  crime ;  the 
penalties  and  and  forfeitures  are  fine,  and  lo«s 
of  his  place,  if  he  be  ffuilty  of  a  new  crime  : 
The  next  article  is  of  pfrcat  coiunderation  : 
There  was  an  act  of  parliament  for  a  war  witli 
Prance,  and  that  army  had  the  ill  luck  to  tro 
off  with  nay,  and  not  fi^htinf;'.  l*hat  money 
was  not  nt  to  pay  them,  but  money  was  bor- 
rowed to  keep  the  army  up.  No  man  can 
think  but  that  tiiis  was  a  crime  to  continue  the 
army  a§^nst  an  act,  though  he  lent  the  kin^ 
hia  own  money  ;  especiiuly  considering  the 
hazard  the  nation  did  run,  by  that  array's  \mn(r 
kept  up,  when  there  was  no  work  ior  theni, 
It  was  well  done  for  Seymour  to  mention  his 
good  actions ;  it  mav  a  little  mitiE^ate  his  pu- 
nishment in  the  Lords  conrt ;  but  this  ib  not  so 
proper,  to  tell  you  any  other  afr^rravations  not  in 
the  article,  ffthey  l>e  crimes,  let  them  add  them 
as  articles  ;  let  n<]fht  be  done,  and  proceed 
M'itli  that  trravity  as  in  other  places.  If  any 
member  will  say  that  this  matter  contained  in 
the  artide  is  an  otfcnce,  let  him  rise  up  and  say 
HO.  Two  members  have  said,  that  they  do  un- 
dertake to  prove  it. 

Sir  Tho.  Ijee,  That  which  is  out  of  ques- 
tion is  not  the  question  ;  but  the  question  is, 
**  Whether  upon  these  articles,  you  will  im- 
peach Mr.  SejTnour?" 

Mr.  Kint^do^.  I  should  not  rise  up  to  speak, 
unless  it  were  in  my  power  to  give  the  House 
some  information  ;  and  it  is  only  because  I  am 
named  by  Mr.  Seymour,  to  whom  I  lont  money. 
This  money  he  lent  to  me ;  but  whether  it  was 
misemployed,  I  know  not.  He  has  offered  to 
produce  tiis  acconnts.  Some  part  of  this 
money  he  lent  me  not,  for  some  part  he  bor- 
rowed of  me.  As  to  the  other  part,  said  to  be 
lent  for  continuance  of  the  army,  I  lent  none 
for  that  purpose  ;  for  those  great  sums  wore 
lent  long  before  the  matter  of  disbanding  the 
army  entered  into  debate,  or  whether  you 
sdiould  continue  them.  Long  before  the  act 
for  disbanding  the  army,  there  ^vas  a  necessity 
that  the  army  in  Flanders  should  have  10,000/. 
to  pre\'ent  them  l&om  starving.  The  other 
money  I  took  out  of  his  house  to  disband  the 
army  Trith,which  might  else  have  cost  the  king- 
dom 80,000/.  more. 

Sir  Thomat  Lee,  I  have  been  long  acquainted 
and  have  had  a  friendship  with  Mr.  Seymnur, 
but  what  I  shall  say  shall  be  for  your  service 
which  will  be,  to  commit  this  matter  at  large, 
because  Se3rmour  is  charged  with  having  em- 
ployed the  money  to  different  uses,and  Kingdon 
ftysit  WB8  not  •mployed  to  the  uses  in  the  article 


mentioned,  but  on  the  contrary.  It  is  noli^ 
tliiuff  for  the  Commons  to  make  coinpbinttftthi 
Lonb  of  one  of  their  own  members.  This  «1 
be  but  a  mean  reoompenoe  of  yonr  credit,  li 
lose  your  proof,  when  witnesses  shall  go  bad 
in  the  l^rds  House,  and  the  Commons  ■■ 
not  to  fail  in  their  prosecution.  For  that  reasH 
the  Commons  have  given  notice  to  offendeni  ■ 
to  the  duke  of  Buckingham,  ^.  becanse  thcgf 
would  be  so  well  inf(»riued,  that  they  may  new 
complain,  but  the  person  may  be  round  guikft 
It  is  a  matter  of  s'-  great  weiglit,  an  impeafl( 
meut,  that  the  Oimmnns  ought  not  lightly  ti 
accuse.  Impearhmrnt  is  your  weapon,  h4 
you  must  not  hhuit  it.  If  'you  are  roistakn 
m  one  part  of  it,  you  may  be*  in  another ;  mk 
it  will  be  a  fatal  thing  to  go  to  the  Locds  wiA 
a  mistake.  You  have  heanl  Seymour's  dl» 
fence  and  Kingdon's  e%'id(^nce. 

Mr.  Horbord.  Vice-Aduural  Penn  and  eon* 
missioner  Pett  were  accused  at  Brooke-Houf 
before  the  commissioners  of  accounts*.  Fleif 
was  accused,  that  he  had  embezzled  prize* 
goods.  He  M  as  summoued  hither,  and  aa* 
swered  his  charge ;  and  then  tlie  question 
"  Whether,  upon  that  complaint,  there 
ground  for  impeachnuMit  l*"    And  it 


solved  in  the  afiinnnfivc.     You  have;^B 

I  caaxi 


I 


grounds  now  again.st  Seymour, 
tako  for  myself,  but  not  for  another  man,  tt 
make  good  What  I  have  asserted.  Mrs.  Ccflicr 
disposed  of  an  hundred  pounds  to  get  theeri- 
deiire  against  the  lords  ia  the  TowrT  taken  o£ 
If  evidcucr  against  Si-^yniour  be  nameil,  tb^ 
may  be  taken  off.  Wv  see  money  has  nuned 
us,  but  honker  I  shall  propose  a  {vay  to  md» 
thekingilom  happy. 

Mr.  Bo-ytk.  I  riHC  up  to  undeceive  gfentle* 
men,  1  hear  it  said  nhmad,  *'  that  friendship 
Sfuidcs  me  in  this  mattrr,  and  not  iimson  anl 
honour." — V\'lK».socver  savs  so,  is  guilty  sf 
irejudice.  If  S»jnioin*  W  u'uilty,  coniwma 
lini ;  if  iimoceot,  aequithim.  If  wo  be  b^fHed 
in  this  in)|U'achme!it  in  tho  liords  House,  it  wiD 
be  a  pi-ejudice  to  all  you  sIkiII  do  ;  therefore  I 
woidd  coiuuiitthe  Ardolos  to  be  well  considered. 
Ill  tho  last  parliament  these  Articles  were  let 
slip,  and  I  doubt  it  will  l)e  s;aiil,  thvrc  U  somer 
thmg  of  reveTi<^e  in  it,  men:  tlian  upon  pubUe 
account.  y\nd  if  That  api>ear,  it  will  be  adaqip 
to  all  you  do.     Therefore  ooinniit  tho  Articlea. 

Mr.  Mo'ttiiffu.  In  the  last  parliaruont,  did 
come  a  credible  substantial  gentUMuan  with  an 
impeuohinent  agaiust  Seymour  ;  but  he  had 
usal  him  ill,  and  the  parllainent  was  di.s<iolved. 
Sir  Chri<t.  Musfiriitr.  An  luipeachmenthaf 
been  brought  in,  andyour  iueml)er  has  answered 
it.  What  is  beforr*  you  i ;,  the  urrouud  of  Impeacbr 
ment  iu  this  ArtirT\'.  Tht*  men ihers  that  broughC 
in  th-^  aiticles  may  have  gruniid  to  believe  thenit 
yet  they  may  bt^  deceived,  anti  so  you  exposa 
the  honour  of  tiie  House.  In  the  Impeach- 
ment of  lord  ^lordaunt,  several  witnoflM  wot 
examined,  and  several  days  were  heara  ;  uid 
next,  you  have  done  so  in  the  case  of  Sir  Wir 

*  See  vol.  6,  pp.  8(ia,  870  of  tiiis  CottactioD. 


4^]         STATE  TRIALS,  32  Chables  II.  l680.~^Edward  Sii/mour,  esq.        [l4(r 

:.  Clarendon's  case.  Th»'  money  niigflit  Ik?  h.-nl 
;  anil  possibly  the  in liiviilua I  money  tor  ships  that 
wen:  U*  \iv  built ;  but  euu  any  nfan  have  satis- 
I'uction,  uuk'j>s  a  coiiHiihtcw.*  enquire  ?  And  so 
\  }uur  iiouour  will  be  saved.  Be  ii])Oii  surt 
i  i^nnd,  and  that  the  e\  idence  hiay  becleur,cuni. 


F^nn.  Sereral  persons  did  enquire  into 
And  it  was  so  difiicult  to  make 
out,  that  the  Hoiuse  did,  by  act,  ^c.  com- 
persons  to  enquire  into  them.  Tliey 
witnesses  upon  oath  at  Brooke- House, 
they  made  a  fmrticolar  report  of  tlie  e\  i- 
'Conld  any  thin^  be  ck^rer  ?  But  here 
icit  sud,  **  gentlemen  will  make  this  charge 
cwd ;"  but  vet  no  proof  is  made  of  them. 
B^^hkhit  produoes  his  account,  and  will  stand 
ind  fill  by  it.  Kingilon  tells  yon,  *'  Tliat  that 
af  the  money  borrowed  was  a  mistake,  and  tliat 
Boney  was  not  so  emptoyed  as  in  the  charge." 
1  VMire,  therefore,  that  it  be  committefl. 

Mr.  l^iw,  I  sat  in  great  awe  in  the  Long  Par- 
fimen;  but  Seymour,  I  rcineniber,  accused 
M  Cfairendon  m  the  l^ong  Parliament*.  It 
vas  then  said,  "  To  char^  Uiat  great  lord,  and 

Kre  notliiug^y  would  be  a  diMhonour  to  the 
Me."  A  great  gentleman  then  of  tlic  House 
[t  may  be,  I  can  produce  the  very  Speeches  I 
then  took,  in  short-haml,  both  those  against 
Ub  and  for  him  ;  tliose  who  were  for  Ckiix*ndon 
were  for  discovering  vvitnesses,  that  they  might 
betalKfi  off,)  lord  Vauuhan,.  upon  his  lionour, 
did  undntaketo  prove  the  article  *^  of  betraying 
the  king's  secret  counsels  to  his  enemiesf;"  and 
thitwis  all  that  was  expected,  that  a  gentle- 
■an  ibonkl  rise  up  and  say,  *^  I  undertako  to 
prarethat  articki." 
Colonel  Birch,      Love  tells  von,  **  he  sat 


I  Miit  it. 


great  awe  in  the  Long  Parliament ;''  and 
I  ankr  in^eat  fear ;  for  that  I  thought  never  to 
see  the  Gissolution  of  tliat  parliament.  I  re- 
nember  that  bii*<iness  of  tlie  Impeachment  of 
kMd  Clarendon.  In  short,  I  did  not  believe  one 
wori  vf  that  which  Clarendon  was  accusetl  of. 
I  preved  no  witnesses  to  be  e\amin(f<l,  hut  itir- 
tlier  ta  "^^'m^  tlie  matter.  We  know  which 
wind  blew  Clarrndon  over  sea,  and  what  wind 
Uows  now.  8e)'nioiir  has  suid,  "  he  is  a  lover 
ofbii  kfflg  and  coimtry,  Vc."  but  1  cannot  but 
obierve  the  hand  of  Ginl  hi  this  charge  against 
Cnuendw.  y\  hen  Sevmoiir  was  in  the  chair, 
nsman  wa^  iiiore  sliarp  upon  me,  and  I  some- 
limes  as  smartly  replied.  But  as  to  the  last 
"  LiOAnt,  I  t!tijik  he  did  lielieve  the  plot  in  the 
Pta'iiam*  :it,  and  therefore  I  did  recom- 
him  to  the  «.>hair.  If  he  be  guilty  of  this 
dilige,  no  mar.  sliall  prosecute  him  with  more 
warmth  than  I  will  do.  When  you  resolvcnl 
ftat  money  should  be  gi\en  up<r)  a  jKill-bill, 
fur  the  French  war  (which  I  was  convinced  of) 
ID  XOOfiOOL  for  some  thing's  was  to  Iw  pro\ided 
IB  a  few  days;  I  said  to  sir  U.  HowanI,  **  You 
hiTe  50,000/.  remaining,  &:c.  in  your  hands ;" 
k  replied,  *'  I  woidd  be  taxing,  Scv."  I  told 
yoiionnerly  of  "  a  cudgel,  that  would  break 
Ikt glittering  bottle,  the^  Fn.'neh  king;"  but 
VBD  must  have  a  sharp  Kword  to  d(»  it  now.  Sir 
Robert  Howonl  said,  "  He  hud  orders  for  is- 
niB^  out  that  money,  ^cc."  I  never  hcanl  but 
tbatif  a  memlior  said,  he  v.'ps  mistaken  in  on 
Aitide,  it  was  no  fartlier  insisted  on;    as  in 

•Hp^  vol.  6,  p.  323  of  this  CoUection. 
f  Ibkl.  p.  340. 
vol.  vjn. 


Mr.  Papillon.  There  were  tivo  acts  for  dis- 
banding  tlie  anny,  but  the  parliameoit  had  a 
I  trick  put  upon  tliem.  Iliere  was  two  luindi-ed 
thousand  pound  given  ford'sbauding  the  anny, 
and  it  was  employed  to  keep  it  up.  I  am 
afraid,  this  money  lent  by  .Scytiiour  uus  that 
which  kept  it  up. 'lie  should  not  have  panod 
with  the  money  till  it  was  eUeeted.  T  do  not  lay 
so  much  weight  upon  \s\y,\.i  is  suid  by  Mr. 
Kingdon,  as  to  cany  this  eliarge  to  a'  coni- 
mitte<\ 

Mr.  KitifrJon.  I  sjK'ok  to  orders.  1  shoidd 
!  not  have  troubled  \ou,l>ut  that  1  find  myself 
I  rcllected  on  by  Papillon.  All  tbaf^ money  W(.'nt  to 
i  disband  the  ra'iny,  and  what  was  lent  to  i^lr. 
Seymoiu:  ^as  before  the  dislKindiug  the  army. 
I  NirlV.  WinninKlon.  Hook  upon  this  Article, 
!  and  i  fnid  it  mentions  not  u!ie  u<irdof  of  King- 
;  don,  but  "  that  SeyuMnir  directetl  80,000/. 
;  Vc."  Hut  lliat  Kingfffui'sniuncy  was  not  (his 
money,  i.s  i:i;.M'e  than  any  !ii:>n  iuiisny.  King- 
don iscouiphiine<l  of  for  inispaying  the  money. 
l*roiimui  ardety  Sec.  I  should  lie  glad  if  Sey- 
mour \vtts  not  impeachetl ;  but  there  is  a  jwr- 
ticcp^  ciiwinisy  6cc.  I  hiiirm,  that,  u  hen  th^ 
eoniniitteesat  lor  eniirii'v  at\er  the  pensioners 
of  the  long  parliament,  u  gentleman  of  (pia- 
lity  gave  evidence,  it  worked  so  hard.  And  that 
was  the  rcaMm  the  charge  cumenotiniliat  par- 
liumi.  at  against  Seymoiir,  that  parliament  Inung 
s<ion  (iiseliai'ged.  I  woidd  know,  v^hen  a  muu 
is  iinpoucht'd,  if,  hny  man  shall  stand  up 
an<l  .say,  '*  he  dooj  n<»t  b'.lieve  the  ai ti- 
des,'" wiiether  this  shall  desinix  any  im- 
peach meni  1'  but  gc^iitlenien  .say  si.:ll,  it*^  may 
Im.'  eomniittefl,  which  is  a  gentle  rejection  of 
the  thing.  If  this  getitleinan  be  guilty,  it  is 
more  glorious  for  him  to  be  tried  in  the  great- 
est place  of  tlie  kingdom,  and  to  justify  him- 
self, than  to  stifle  it  here  by  commitinent ;  and 
then  the  ne.Yt  thing  will  l)e,  v  itnesses  will  run 
away,  beeausi;  this  great  man  is  too  great  for 
the  1  'ommons  of  England .  If  you  take  away  tlie 
means  \ou  take  away  the  end.  The  court 
ever  caks  for  prosecutors,  but  ne>  er  for  wit- 
ness™, till  issue  ho  joined.  Seymour  has  com- 
mittoil  a  givat  crime,  and  he  will  commit  a 
gi'eater  to  keep  himself  from  justice.  I  was 
counsel  for  lord  .Morduunt  *^^  in  his  imi)eacli- 
rnent ;  and  I  remember  the  House  would  not 
let  me  produce  one  witness  for  him,  and  he  \sn3 
iiniteadird.  W\i  know  what  crmstitiition  the 
long  parliament  was  of,  and  what  pn^ceilcnts 
they  made  ;  but  at  the  lattiT  end  ol  it,  when 
itl)egantobe  filled  with  brave  men,  Articles 
were  presenteil  siguinst  lord  Da  id)} ,  and  there 
was  nothing  but  jiroseculion,  no  reeomnnt- 
ment.     If  the  articles  be  not  provinl  upon  trial, 

*  Sec  vol.  C,  p.  785,  of  this  Collection. 


147]        STATE  TRIALS,  32  Charles  II.  1660.— 

it  is  no  reflection  upon  the  Honw  of  Commons 
but  on  particular  men  who  undertook  them ; 
but  if  the  centlemen  undertake  to  prove  the 
articles,  and  you  do  not  impeach  tiiereupon, 
this  will  be  a  great  discouragement  to  call  great 
men  to  account.  Kingilon  borders  upon  the 
same  offence  with  Mr.  Seymour,  if  it  oe  one, 
and  so  what  he  says  is  of  no  weight. 

Cok>nel  Birch,  I  will  begin  where  he  ended. 
He  tells  me,  "  I  will  look  to  my  interest."  I 
say,  that  Winnington  pleaded  for  lord  Mor- 
daiint,  and  then  you  know  where  his  interest 
was.  So  he  grounded  that  old  maxim  of  mine. 
I  think  myself  not  well  dealt  witlial,  to  tell  me 
of  my  nibbling  about  money.  I  am  auditor 
of  the  excise,  and  can  any  man  charge  me 
witfi  ever  taking  six-pence  bribe  ?  L^ely  I 
was  one  appointed  to  disband  the  army,  and  I 
meddled  with  no  money  but  what  I  gave  ac« 
<30unt  of ;  because  I  am  told  of  '*  nibUing."  I 
did  not  say  "  that  it  wta  impossible  to  proTe 
these  Articles,*'  but  no  man  can  but  he  that 
keens  the  cash.  If,  afler  all  this,  this  indivi- 
dual money  was  giren  for  this  use.  Sec,  it  is  an 
Article  to  impeach  upon ;  if  not  you  cannot. 

The  Debate  was  adjourned  to  toe  next  day. 

Nacetnber  26. 

Sir  J(^n  Knight,  I  conceive  tliat  the  House 
intende«l  to  proceed  to  such  Articles  as  may 
be  suitoMe  to  vour  honour,  and  that  the  ho- 
nour of  the  krogvlom  may  not  be  laid  level,  and 
your  member  acquitted.  As  for  the  first  Ar- 
ticle, *<  thai  Mr.  Seymour  had  directed  the 
money  you  ^ve,  for  another  use,  \c."  it  is 
n>rv  nt  that  he  lie  called  to  an  account  for  it. 
If  I  stand  up  and  say,  <*  I  will  make  fvtM>d  an 
article,**  coasider  how  it  will  be  made  good. 
Says  Seymour,  "  Not  one  penny  has  been  di- 
verted, but  employed  acconling  to  tlie  act  of 
parliament,"  and  proffers  to  produce  his  ac- 
counts. In  the  one  way  or  the  other,  consider 
well  what  you  do,  lest,  if  he  be  unpeached,  the 
Lords  find  him  not  ifiiilty.  Therefore  it  is  not 
enou^  that  a  gentleman  rise  and  sny,  he  wiD 
make  it  good,  but  be  sure  of  proof  for  your  ho- 
nour. 

Mr.  Harhord,  If  you  proceed  by  precedents, 
lam  sure  you  have  many;  but  the  question  of 
commitment  of  the  arlick»  was  not  first  put. 
If  you  put  the  question,  *^  Whether  there  be 
ground  of  Impeachment  upon  theto  Articles,** 
Siose  gentlemen  left  off- 
Sir  Nicholat  Car€u\  The  question  of  com- 
mitment of  the  Articles  arises  from  aif^ments 
of  the  honour  of  the  House.  But  no  man  had 
been  impeached  in  tlie  long  parliament,  if  that 
had  been  an  anpunent.  If  you  put  so  great  a 
tlJS(M)iiragemeiit  upon  momliers  that  bring  in 
im|>eachment5  against  great  men,  \>hat  use  are 
you  of,  unless  to  frive  money  ?  We  know  the 
condition  of  the  nation  ;  if  wc  go  this  way 
to  w«frk,  we  give  up  all.  You  must  mistmst 
the  lionour  and  wisdom  of  your  members,  that 
they  brought  in  this  chaige  maliciously,  if  you 
,Kfer  it  to  a  committee,  and  rest  not  upon  their 
undertakiDg  to  make  it  good.  Were  this  charge 


only  a  breach  of  the  letter  of  the  law,  I  y 
not  open  my  mouth,  for  every  one  ollnda 
what  became  of  your  money,  when  the 
should  have  been  built  within  the  time,  u 
army  raised  for  an  actual  war  with  Frano 
you  were  t(M from  the  bar,  ^'Thataraitf 
would  rather  be  guilty  of  forty  nmrders, 
that  it  should  not  be  a  war  ?*'  And,  yoa 
a  letter  was  produced,  *'  That,  abmit  ihm 
lord  Danby  was  treati^  to  make  the  kin 
butary  to  the  king  of  France,  and,  on  tha 
tence,  to  keep  cm  the  parliament ;"  ■ 
army  was  raised ;  for  aught  I  know,  t» 
on  tne  Plot.  There  is  evidence  enough 
if  you  do  not  impeach  Seymour  ^ive  u|b 

Mr.  Leveton  Oower,  I  diffor  in  the  i 
but  not  in  the  end  ;  when  a  member  did 
up  and  say,  *<  He  vnll  undertake  to  pr» 
charge,**  and  yesterday  another  stoi 
(Kingdon)  and  told  you,  '*  He  believed  tl 
trary,*'  and  another  replied,  '*  Kingdo 
as  criminal  as  Sevmonr.*'  Keeping  i 
army  was  a  mat  ftiuh,  after  the  act  fb 
banding  it ;  but  in  the  act  for  diibaiidiiigj 
paymg  it  off,  there  is  a  danae  of  indn 
Next  It  is  said.  '<  If  the  Artidea  be  reftne 
committee  to  examine  the  proofo,  will 
maybe  menaced  and  taken  off.*^  fint 
it  miglu  have  been  in  the  commktae  fo 
Plot ;  Bcdlow,  Gates,  Dugdale,  te.  i 
have  been  taken  off.  One  en'  the  evida 
said  to  be  a  man  worth  10,000/.  I 
der,  such  a  man  should  be  bribed  or  ma 
Be  sure  of  the  proof,  else  the  honoor  i 
House  is  exposed.  Is  not  all  the  evidfi 
the  bar  against  the  Lords  in  the  Tower  k 
and  printed?  shall  we  be  afraid  to  ahm 
evidence  a«unst  a  I^rotestant,  a  man  of  fi 
and  not  afraid  of  evidence  against  pepii 
am  for  committing  it. 

Lord  Cavendish.  You  are  moved,  "  Th 
clmrgemay  bereferred  to  a  committee.**  1 
for  no  other  reason  but  that  the  matter  < 
prizes  may  be  examined.  Persons  at  a 
mhtemay  say  things,  and  retract  them  a 
but  those  against  the  five  Lords  in  the  * 
were  past  retracting ;  they  were  all  upon 
If  that  be  so,  committing  the  Artidea 
way  to  have  them  fall  to  nothing.  W 
doubt,  the  Articles  are  criminal,  aiM  a  bre 
two  acts  of  parliament.  A  member  has 
**  He  knows,  that  part  of  that  monev  wi 
employed  for  building  ships,  and  tnat  3 
kept  up  the  army.'*  On  the  other  aide,  a 
ber  siK>kp  positively  to  one  iVrticle.  If  tl 
nour  of  the  House  be concenied,  it  mayl 
dicated ;  but  I  cannot  imagine  that  the  ft 
of  two  members  that  asserted  the  Artiek 
be  exposed.  I  cannot  suppose  that.  Tfa 
tides  are  criminal,  and  undertaken  to  be  pi 
And  there  Ls  ground,  to  me  sufficient 
in  the  articles  there  is  matter  to  impeioh 
mour. 

Mr.  Dultois.  There  must  go  a  great  1 
blows  to  fdl  a  great  oak.    Here  are  higfa  e 
chargetl  upon  BIr.  Seymour,  and  oflmd 
proved,    llie  issue  is»  Whether  apon  ttl 


mi 


149]      STATETRIALS,  KCbaklBsII.  l6fiO.-^£dii>ard Sej/atimr,  eiq.        HSO 

|M«aEidit  BiUavenf  If  theUst 

jiMlUNlainekUMgn',  I  wouU  not 

ihmk  kacMC  &r  S\d.  Tbe  mouay  for 
tmi^ikiifi,  ftOBtA  with  m  nuuy  cImumi 
taAiM^lM.miiU  MtliBTe  been  diverted. 
IhniiUmi^intbeflrat  kO,  Iwi  not  in 
A>  Ik.  He  at&  ot'  Kiii|^'a  acgitive 
■riiMaiklbefi,  wOnotbeput  in  competi^oD 
m/kwAman*.  If  Seymonr  be  inclt- 
■Hlli  lifoj,  be  ii  ready  M  bring  in  ubi- 
kHjMOMtf.    I  Mn  for  impcftduiv  hini 

blflfaaAiiiM.  In  thim  cue,  yon  «re 
■MMMnMcaton,  and  therefore  I  hope 
jm^wAfmmJK  of  it.  If  you  proMCuie 
viq^i^kmlkTWyiU,  and  therefore  ■ 
■■■MlMniaifleaBjt  of  bin  own  pMidon 
kdipHHOiM;  RAouMhe  louo  ill  end, 
■lAndMHte  a  monl  anurucool'the 
■■hefAethngW^  IdettotMethatindiutry 
■rijAwkORtbechugebewellKroiinded. 
flMM«hBanbcr(Kw£doa)tpedu  actu— 
PW''  fif**!  loo  mcmban  apeak  their 
tkm^  isitmn.  If  thia  biwiiiesi  come 
UmtitJMtk,  &  wiU  be  abMlved  b  this 
Mabn  bnf  pMitive  proof  from  one,  and 
«*rbi«H&Mtwo. 

_fc.  !»»*.  FiUn  and  truth  are  raMly 
AfaMS  Mwha  fiUty  i»  in  a  fine  dreas,  it 
■■■>"■•-  ,I"ual  6nrt  full  of  fear,  ieat 
'     '        It  making  good 


4«iiilrfElto 


la^MAiBauK,  tkequalitv  of  the  conipi- 
ft**  fcg  aninher,  and  utal  the  Houae 
*'nni^j  TiMNewithotttdoort 
Idact,  who  arefbr  tnpcach- 
(,  your  pnipB'  queatirui  ii, 
-""T  in  the  Arades  be  a 
Seymour,  Hcc.  ?" 
but  in  the  nature 
jury.  To  what 
W  BtnaiM  giro  the  oommitlee 
^■■V  if  M  eridence  ?  Let  it  be  known 
^MlWpanlumju  befcre the Lowh.  hi* 
of  your  memben,  to  refo 
antrnfttM  Ut  befrOTed,but 
igainMlbe  utethod  of  [wr- 
it carry  it  t»  anodier  |ibce, 
^  —  .--  diaoovar  the  eridnice,  and 
*'"i  fi"  iiruMcr  b  not  to  know  the  evi- 
■M-  Bui  hi  itAr  it  to  a  committee  to  hear 
•gkinat  all  law  and  method. 
t.  II'  1  wae  of  opinion  that  the 
■'  ItouK  waa  cnncemed  in  it,  I 
ily  lie  a*  ewer  aa  thoae  ffcntlemen 
iiiU  thii  laaige  abould  vo  to  the 
«  u  paM  a  oonunittee  here.  It 
~  tf  miafbrtUM  to  the  Houae,  if, 
I  of  partiality,  the 
u :  Iherefhre  1  iiball 
■iAai^baifaK  yM  put  it  to  lo  great  a 
L  ilk  JMurtct  t»  the  Houae,  and  your 
««ha  hM  bea  a atahna aaaertor  of 
pi  rf'dM  CaHUMOB  m  the  matter  of  the 
•  kltaf  mfon  than  to  judge  original 


caiuea.  Your  right  in  canyin^^up  the  looneyr 
bill  he  ligwDu^y  avuened  :  it  is  a  JuHtiee  you 
owe  him,  not  to  expose  him  to  that  tribunal, 
wttlwut  ev^eooe  first  beard.  The  evidmoe 
Kill  all  be  exposed  to  your  cenuiie ;  there&i* 
examine  the  grounds  of  the  charge.  I  riiall 
not  speak  to  precedents  of  impeachinenia  ;  but 
there  i>  a  considerable  diftereitce  betwixt  im> 
Teason,  and  ^liBdetneonD<^  It 
becaiue  iii*  trraaon  is  ibund  by 
the  Lords,  that  therefore  no  misdemeanor. 
Piecedenta  are  express  in  the  case,  as  that  of 
ur  William  Icon's  impeachment ;  ami  you 
will  hardly  find  one  preo^ent  of  misdenKtinor, 
"^  '  ■  one  in  a  contrary  way,  but  has  been 
at  acominittee.  Wiere  the  matter 
chained  and  the  proof  was  presoited  t«  the 
House  at  the  same  time,  as  in  the  case  of  bml 
Dauby's  letter  to  Mr.  Montagu,  there  was  no 
need  of  ivitneases.  And  another  reason  is, 
where  a  gmtleman  undortakes  to  make  the 
charge  gwd  upon  bis  own  knawledge ;  that  ii 
much  diflbrent  trom  the  credit  of  olhen  ;  that 
iu  not  girinff  credit  to  your  member,  but  to 
peiaons  not  known.  I  will  iiM  reflect  on  the 
creditoflbe  proof  undertaken  by  yourmem- 
beiB  ;  but  I  niubt  say,  you  Iteard,  on  the 
other  side,  tlie  tetitimony  of  a  member  (King- 
don,)  if  not  all  the  conMecaUe  circumstanoea, 
of  hu  own  knowledge.  I  am  sorry  1u  hear  it 
olgected  against  his  Icslimony,  "  that  be  is 
purtiitpt  criminit ;"  if  ao,  1  fear  you  wiU  want 
mort,  if  not  all,  your  testimony  M{aiDSt  the  five 
bmls  in  the  Toner  ;  which  is  so  far  from  inva- 
lidating tlieir  testimony,  that  it  confirms  it. 
Not  ti)  accuse  himself  to  excuse  snotlier.  In 
the  iiupeaclunent  of  lord  Strafford,  when  sir 
William  Pennyman  was  brougfat  by  my  lord  10 
slww  that  his  words  had  been  otherwise  than 
they  were  token  lo  be  in  the  impeachment, 
viz.  "  That  the  king's  little  finger  should  be^ 
bearit^r  than  the  luins  of  the  law,  *tc."  one  of 
of  llie  impeathmenl  told  sir  Wil- 


themanaireniol  llie  impeacht  . 
liam,  "  He  did  ill  diacliarge  liis  duty  \> 
Commons  (being  a  memDer)  to  auHer  iob 
House  to  run  upon  such  a  mistake."  Hss  not 
Sf^mour  done  your  servicv  worthily,  and  1 
hope  you  will  as  worthily  eoiiaider  it,  in  your 
manner  of  proceeding  with  him-  Tliat  matter 
alledged  gainst  Seymour,  "  his  dextenty 
when  he  cast  his  eye  about  b  the  long  pHis- 
ment  to  tell  the  House,"  is  not  in  any  one 
article.  You  may  see,  by  bis  accounts,  the 
money  received  and  the  money  luiid  ;  and  the 
navy-lioard  must  U'  his  vuuchcih,  and  lliuee  he 
willproduce.  If  Seymour  must  answer  for 
the  faults  of  all  men,  there  is  (ffound  for  im- 
peachment. Therefure,  upuu  the  whole  ex- 
amination of  this  case,  before  it  go  to  the 
Lords,  no  Direction  can  bn  against  mi|iuiil- 
ment.  I  do  conceive  that  the  act  of  jiarlia- 
ment  fur  building  the  shius,  Sec.  does  ini|io»er 
tboae  aceouiits  to  b«  taken  by  the  Huuse  of 
Commons,  iii  an  expre«s  clause.  Ireiucnibcr, 
ill  a  disuute  betwixt  the  LiinU  aiul  Cuminons 
about  tne  arcnunting,  dec.  the  I»nl9  are  ex- 
idudcd,  anil  you  ought  tvgulariy  to  recave 


151]         STATE  TRIALS,  32  Charles  II.  l6SO.--Procetiingi  ag&mtt         [ I5f 

if  it  had  sat,  (as  some  took  care  H  ahmild  Mt, 
hy  (lisaolrin^  it)  by  the  person's  eridenoe  wla 
wus  employed  m  the  things  thenudfi 
Tliey  tell  their  story  with  cohereiioe»  and  pit 
reasons  why  they' may  be  trusted.  Hoaerf 
this  nione^'*  xsna  empjoj'ed  for  thearmyiil 
koc'P  it  up/  But  others  say.  by  circumiluidHi; 
\s\\c  believe — You  are  told  by  JenkiBi  tf 
**  facto  proprio,  Vr."  I  think,  KmgdoB  ■ 
under  sii^pi'.Mon  of  the  same  thing,  aiM  itaa 
natural  suspicion  (»f  this  gentleman  to  hei^ 
ciisetl  for  TiMiiey.  ^o.  And  should  not  I  tikkk 
xhat  if  m\  neij;iiboar's  house  were  od  fire,Ai| 
my  o\\z\  ^vas  in  dani^cr  ?  And  that  is  K^f 
don's  case.  It  is  natural  tor  men  to  be  i 
rates  fur  fault*,  that  they  may  be 
tor.  1  think,  there  is  ground  lor  im| 
tho  fac:  beinc  criminal,  and  will  be 
Tht>  ihiii^  it^Hf  makes  the  tact 
you  ha^e  no  suspicion  of  the 
dertaken,  because  Kingdon  speaks  in  hudim 
case,  it  has  been  well  ohfccted,  '^Tkifttk 
freat  {len^n  that  has  great  power  can 
N?  punished,  if  e%iilence  be  brought  totfae* 
minee;**  therefore  I  desire  evidenee 
not  b->kn«>un.  fh:>!  art,  force,  or 
t*omipt  nr  i.'in'V  fnim  ginne  their 
The  com nv.rt. -oVf  socivcy.  5ie  last 
Witt  onl\  iMK»Hi  sn ;  all  they  did 
publicly .  I  ^peak  it  of  nn*  own 
and  auii>n:r«T  kjK>W:n:T  men ;  coDSiaiitly, 
oisfht.  1  r.!  Ilanby  had  inteili:rence  of 
was  i^'»ni .  Finoh  teils \ *mi,  **  That  hy 
rity  irin\  i1v;t>s  uor?  hn^ki^ht  under  ibei 
ttr  '^t  thi*  r.n.i-lc  n"  the  m"!iey,  ^c."  And  he 
toi^k  i<oas:-.«!i  to  ir..2;jiiify  S.\\  iu«Hir,  Sec.  If  ths 
witatss  affunsi  the  k^ris.  b^m^ pu^tueps crasi- 
Hif.  had  ::-  «ne  a-.«ni!  tn  »-xcuw  what  the  hrii 
hatld^yi.;.  h  «\h;M  be  no  <  «Mupetent  crkiEBCB ; 
but  if  Kii';:>v ".T  iMil  3*t-:>e  St'^mourhe  ist 
iVknr^ittent  e^U.-HV.  To  corooiit  thischnib 
i<  :^  li-a  :t  »■  iV.t'  j,m'  i^f  the  House ;  TbuiMi 
;HLttl:c  v-.:->L''^.  *-  FiKit  tLwre  is  matter  of  !■- 
'>"achny :  \  .•  '}-^<t:  iriic.ts. 

>!7  H.  V.  I  ••  i.«  prwien:  at  the  Impcack- 
n-.vT.i  .*?'  .-o:  t*  i--!-.>»r.  Yesterday.  I  heaidt 
r.itu  V;  ss^i\.  '-  T..  iTi-:  that  uupestchment,  ti 
r»*r%  jr«.,:r-  ji  !TwvS  r  »i.d  nse  and  saT,  *•  I 
w.!i  XAx.*  iiiji:  i-Tv.'-.**  'j»^ .! :"  and  for  that  iMh 
Si*",  I  ivA  '.V «*  ic*-->i  tius  way  of  pn^ 


that  acTDUht  in  the  House,  nnd  to  let  a  com-  ' 
initttv  examine  it.     If  thb*  be  so,  rectMvc  the 
first  motion  of  iMumiiittini;  the  Articles,  and  so 
you  niiiv  nx-eive  the  nrc<»unts  in  tlu'  House. 

■Vlr.  HurintnL  Tlii'n'  is  a  n»ricctinn  u|>onme,  : 
of  ••  dcxtiTity,  Sec."  ft  is  a  tinrible  expression,  ; 
to  fri;rht  a  p:t'nilt>ui:iu  fn»m  his  public  duty.  1 
will  nrv(*r  decline  niv  c*ountrv*ssor\ict\  nor  do 
I  C4«vct  S\vmo!ir'spln*'c,  no/cnvy  him ;  there- 
forcl  lio|M'  vou  Mill  net  sufTora'uian  tJ»  h*»  re- 
tlwicil  on,  til  at  a  thin«r  i<  dt»nr  w  ith  •*  ilexte- 
rit\ ,"  «IuMi  it  is  dene  with  sincirity.  You  are  j 
told  by  S«'vuM»ur.  '*  Th:st  \*  liat  lie  has  d»»nr  j 
was  luit  without  the  .ippntbmion  of  the  Com-  i 
mi<sionersi»fthe  n?.vy.**  There  m as  a  ir^'at 
stni««rle  hi*tu  i  \t  h<  lu  *  and  the  ( 'enuuissioners. 
\c,  'nien>e.eh;iiits.  iimlinu  S«\\iuour's  credit 
anil  |M\vir  ttv"»  l»i;:.  fetl  ujwn  theUminiissioners 
ot  ihiMKivy.  Sty meur  h;u!  iit<:t ructions  not  to 
p«y  any  nioiuy  wiih.kut  warrant  fmni  the 
c«»nMU!s<iert  •■s  'of  ilie  vzvy.  Tlie  inerehauts 
said.  ••  That  the  i-Mnniis^ioiMTS  had  told  thctn 
they  \l^^\  onUnsl  th.  r  uionei",  but  S^'yunnn- 
w:.<  ii,>r  r,^,|v  |o  pny  jr."  But  (hereaso'n  why 
S.*\nunir  voull  \wt  oS^y  the  cotumis»ionefs 
onler,  w  as  thai  he  th  sms«>t  them,  ami  came 
!".»!  to  them  in  some  n^MitliN  I  have  the 
|«|Mrrs  t»i  pntvo  ,V\  ntonr's  Apiwer.  ami  tlw 
(\Hnmi<sioiii«TS  Ueply  lo  it.  (Th»»n  ho  spoke 
ef  \\\<  n  fiisiiisT  lo  sTon  a  c«^nveyancp  to  lortl 
l\v.ili^k  of  fluids  from  ilie  kiiic>  A-itowhat 
KuixK  <aid  of  ••  dcxter.rv,  \o."  I  never  voted, 
ui  anv  tvuueil.  ••  Tbiu  th.«  d^di^e  %>f  York 
sl»»nilJ  stay  ni  rn^Usul."  when  he  was 
tUvnuxl  ai»  t*ne«ny  xo  \\w  naiiep. 

>lr.  F:i-}..  W  iu'.  Ma'-Upr''  rr-.lunl.  1  diil  roi 
kiHiw  Tii^  maner  b^twiu  S'wvour  .vvi  th»^ 
r.*\^  -l^^V..  I  d.*  vi\ .  the  n.;\)  ->KLnl  !">!>Ur> 
*i*«»*hers  to  Sexmo'.ir's  aiViMV-.T^i",  ar..!  the  K\- 
i'h>;ikT.  it' 111;%  i:r..l  r.r..».  u;!  ?-...{  dci.v  tht 
■^ivr.  .\s  I'l.v-  Il^riXYirs  i»*ii-:r  even  wiili  uk 
ia  th«*  Asivrs^^n,  ••  That  I  w?.-; irv  »'f  ihi>«fc'  iha: 
ivta;-wjl  the  I'.uke  in  Erclaiui.'  I  cun  Tusrif) 
it'vsvtft*'  <\tTy  rHMv'v  r.  -ivi  siie  n->iX  i.4r:.il. 
I  w:ts  ixs  r'  r  :r>^  "  :  t'lK  :v  !l:>  h  js:  U- ».,  «.i=:o- 
tily  th«-i-.!<lits  ti*  i!*.'  iK>  -v.  1  .». «  ;h--./K  v 
was  :taxv!KI-^  :r,f  i».:ko  >:i  *;.;.?  >•  aS«*nt,  j:^i 
had  s^vllr.:^  f.  r  it,  li!  iIk*  ei-.-^.^^n  ■'?"  the  pat- 
lianieitT.  • : -.  I  wv-s  sa:-.*:>*.*  i  »:--.  .t  k.'^n 
that  "  e.  \:rr'.-\  '  wi<  ^  ,-  .. , .  ^^^t  .m;  w:  :.ru 
to  e\^v-s^'  Hirb».«^?  ♦'■^»!n  •  .a:  ^     •'.•■. 

kQo%i    :  v'f    wti^  »»:'.:^T    i»a\ 
B.»*r  :n  :•!'*  :tM[:*"f.  *^.:rt»  I   .-"^si  :<r  he'»  ^ito* 
•vwttt!  \k\'.. ?'s's>* >  ^ :••/  I  ■ "  ■>  ji»- ^  V *  '^  rs  b  i *  e  .vx''* 
I  iw««TsaH  b\  s  Vrv>!**.s  "hj?  *»e  .\:«vv  »w*«*»w. 

^w  tt\:.;VrsK  st.v«cr  •■■•^■jv'-.  l^  '"*  i^-.  \t?  w. 
**«**i>f  nx's  ?■'  >  ■>  •  ■-  t."'.'  i'-.fv  ■,""*.x^".t  ;  "'v 
^^Jiy   *:i    ;3c    -..".^  ■•.■.-.       !•■   :U*-   i^  ■;:   V 

y?U.fiA:  J.MI  S.:K*f\:  \    -  v:<  jfliX  ■vk-»j;k-;vc: 


■•.IV     V"^*!- 


t"av.  wn  tne  arrv-V  h-'  ur.j^^rcvt  io>  pnwe;  he 
ow .e*'.  ue  wx*  AS.Sjvii by  di«  ^* Hfeocp.**  It wm 
*  Ir^irx:  vm<»\  itw  '.vx^wivjc^  ia«T.aiMi  I  tkiflfcil 
wil  Sf  'i*'  PAW .  It  he  wvw  :>t  £Tvatesi  cneny  1 
'.  d  -.  I  i*u'  Wv«r.c  :  dnti  ii:kretV.>nf  I  am  lorcHi- 

M-   i.-rv.  I  «>£'  <cv.»iE  .«r>'T  10  die  qmitiw. 

If"  I  » r^  "••" * •<«.>'•:    z  -Jnf  -r-is<^  and  v^uirr rf 

I,  I  's'vvA'  -*c  "v  j^i^nss  r^Hrtmaatat.   I  Inn 

•Y'H^N*-'  "^'^  :•  <''-*-'r\ .  STE*-^  ittsa  aesht«  airtif 

.>rjv "« i "  ■-■*'  *  f  •  »*  i> '. S«:  «.•- .  ■  ■  Now  ^-oti  hsn 
'^  i.'«»  :  •*■  %.  *  I.-  ♦>«  -\'  Ki.  T»v  lit*  h««tv>ur  of  the 
U  ■.  ^  y«     li^e  r  •  *-h«^   wSifTh  xn-1  whea  ths 

»•«■•■••«%.  i»i  «^  'T'H^'v  '?^i.  isti  ■>«■  wf 


iT  a. 


.svif.  -  TWt  is 


133]        STATETRIALS,  35  Charles  II.  iGSO.-^ Edward  Seymour,  esq.        [154 


ihr  way  to  inralidati:  all  your  tettimony,  by 
poUfekhuig  the  fiTtnessei,  who  hy  corru^ion  or 
mmop  nay  be  taken  off." 

yUr.  Trtmckard.  I  clesireyouwillkeepf^icrt- 
lv  lo  the  question.     In  the  caae  of  lord  Claren- 
M,  the  House  had  not  no  great  inducement  to 
inpearfa  ai  now,  because  members  did  not  un- 
make the  proof*  of  the  charge  tlien ;  tlicy 
kid  oidy  inducements  to  believe  it.     Money 
■Mint  byHcymnur,  and,  consistent  with  truth, 
■rt  knt  to  Kioffilon.     In  an  imneachmcut  of 
onglit  to  be  more  tender,  than  in  a 
barely  of  mi^Mlcmeanors.     When  gen- 
ido  andeituke  the  proofis  fnf  the  charge, 
■  iiaAiparafvement  to  the  members  to  refer  it 
*•  A  cammittee  to  examine  evidence.     You 
■Maot  put  discmirBgcment  upon  your  mem- 
kn,  lea  yoa  lay  out  measures  for  the  future. 
Hkmtbe  duke 'of  Lauderdale  was  charged, 
iwi  ifter  the  parliament  was  prorosfued,  you 
fcwHi  one  of  tlie  witnesses  Iwught  ofi',  and*thc 
sent  to  the  Tower.    If  the  Ijonis  find  not 
;^,  the  diminution  is  of  their  honour, 
and  It  is  no  more  than  a  petty  jur}' 
Ml  HadiBi^  the  person  guilty,  when  the'graiid 
/■y  has  limnd  the  bill.     I^^ay  put  the  qnestion, 
**  Thrt  there  is  a  matter  in  the  articles  to  im- 
poKh  Seymour." 

1%  Tho.  Lee.  I  know  not  what  the  Jjtmh  will 

«T  capctTuing  the  Ship  and  the  money  in  the 

divide ;  hat  when  matters  are  reiluced  to  par- 

I,  yon  pre  obligetl  to  consider  the  act  of 

nly,  whether  the  crime  be  panloned  by 

'  *  You  are  bound  to  take  notice  of  that 

it  is  plaiidy  expressed,  **  Hiat  no 

ihall  be  impleaded  for  what  ho  has  done, 

to  tho  army,  5cc.  by  that  act.** 

ffe  Wi/liirm  Jorifs.    In  |K>int  of  law,  every 

^^hiwng  the  goods  purloined  and  cm- 

ii  an  offence,  and  the  art,  &c.  does 

the  goods,  the  indigo,  ice.  of  which 

was   made.    Take  it  oi*.e  way  or 

r,  the  question  is  at  an  end. 

Sv  TkoHun  Lre.  1  desire  only  to  know,  whc- 

dtor  a  particular  exception  does  not  explain  the 

(fir  /v.  Winnin^ttm,  Look  into  that  act  of 
WiBB  which  passed  some  time  belbrc  the  dis- 
■miB|f-act,  and  \ou  will  find  abundance  of 
in  it  fur  the  benefit  of  great  men.  I 
be  very  loth  to  put  an  article  u|Hm  Mlev- 
r,  that  is  already  pardoned.     Seymour  did 
Thouifh  haply  he  might  be  panloned  by 
U  he  wouki  not  shelter  himself  under  it.^' 
to  that  particular  relating  to  purloining 
I,  or  any  corni|>tion  in   his  office,  if, 
think  that  an  argument  probable  to  im- 
1  kive  tlie  gentleman  so  well  that  I 
hardlv  arime  him  to  plead  it. 

'  Arch.  I  will  not  take  notice  of  par- 
«iB  geatfanens  pockets,  but  that  act  of  par- 
taken of.     I  said  formerly,  u|ionthat  act, 
MB  it  was  wdy  for  the  sake  of  some  f^reat 
na."     If  hwyers  say  that  Seymour  is  not 
to  the  prizes,  &c.  by  that  act,  put 

put,  That  the  eonsklera- 


tion  of  tlie  Articles  be  referred  to  a  corauuttee, 
it  passed  in  the  negative. 

liesoived,  "  Tliat  Mr.  Seymour  be  im- 
peached upon  these  Articles,  and  that  a  Com- 
mittee be  appointed  to  pi-epare  the  said  Im- 
peachment.'' 

Mr.  Harbord.  1  have  set^n  no  other  prece- 
dent of  commitment  upon  a  charge  of  misde- 
meanors, but  that  ol  sir  Giles  Mom|>esson. 
The  House  did  onler  liis  commitment  to  the 
Serjeant.  I  desire  the  loiii^  robe  may  consider 
of  it. 

Sir  Christ.  Musgiavf.  Way  call  for  tlie 
Journal,  and  see  the  proi^ent  of  sir  William 
Penn. 

Mr.  GarrOKay.  We  have  not  been  frequently 
troubled  with  iiii|»caclimcnts ;  but  iu  the  last 
parliament,  the  case  of  the  im|K»chment  of 
lord  Monlaunt  and  sir  William  Pcmi  was  ibr 
misdemeanors.  That  of  lonl  Clarendon  was 
another  case.  In  this  you  cannot  extend  the 
impeachment  farther  than  the  articles. 

^ir  Thomas  Lt:c.  L'uIcsm  you  \wll  do,  in  this 
case,  mure  than  has  been  done  in  any,  refer  it 
to  a  conuuittce.  Consider  the  precedents  of  sir 
Giles  Mompesson,  \c.  Ik^cause  nobody  would 
be  security  for  his  forth- coin iLg*,  anil  no  con- 
fessed the  fact,  he  was  imprisouod.  Is  there 
no  diHerence  lietwixt  misileiiH'anor  andtrca.sou  ? 
But  1  will  not  enter  into  the  debate,  but  desire 
to  know  the  coin-se  of  all  |»arliainents  rehtiiig 
to  prece<lonts.  Li't  the  fact  Ik'  plainly  before  you 
and  do  what  you  will. 

Sir  Fr.  Tl  mnin^ton.  Be  careful  not  to  go 
from  the  rules  of  right.  I  appeal  to  you,  if 
an  iufonnation  of  luLsdenunuior  Ix;  against  a 
man  in  an  inferior  court,  whether  they  do  not 
imprison  the  party  till  they  shall  thiidc  fit  to 
bail  him  ?  I  bi*lieve  there  are  several  prece- 
dents of  ineiiibi*rs  couiplaincHl  of  here,  that 
have  In'cu  committed.  Sir  John  JU.*nnet  was 
taken  into  custody,  in  onlor.to  have  an  impeach- 
ment drawn  against  him.  Seymour  beinif  com- 
mitted to  the  Serjeant,  if  he  sa^',  **  I  desire  to 
be  bailed,**  he  ought  to  be  in  a  court  of  record. 
But  I  take  it,  there  is  more  value  from  an  im- 
peachment (»i'  the  House  of  ('ommons  that 
sounds,  of  grie\ance,  \c.  It  is  not  the  judg- 
ment of  the  House  that  he  should  remain  in 
cust04lv,  but  for  so  small  a  time  till  the  iui- 
{leachmeiit  may  be  drawn  up.  Hiirhor  prece- 
dents than  thosc^if  the  lung  {>arliiiment  nuM 
Slide  yim  ;  that  so,  if  he  stand  conunittcfl  till 
e  impeachment  lie  drawn  up,  he  has  no  wrong 
done  him. 

Sir  Chrii.  MitufiraTe.  I  cannot  agree  to  refer 
this  to  a  committee  to  examine  Preceilents,  and 
in  the  mean  time  to  conn  nit  him  ;  wliieli  is 
first  to  commit  him,  and  then  to  examine  pre- 
cedents of  commitment.  1  nonlil  know  by 
what  rule  you  commit  him  to  cuKtcHly,  if  the 
crime  lie  bailable.  If  he  offer  bail,  the  Hoiitie 
of  Commons  cannot  bail  him.  liCt  us  that 
complain  of  arbitrary  courts  take  care  that  we 
be  not  ofienders  ourselves.  Ik;ing  a  member 
of  this  Home,  you  cannot  dii'est  himofthepri- 


«lbere 


151}         STATE  TRIALS.  3*  Charles  II.  iSiOi—Prteefdhgiagi 

vflepfB  he  buout  of  the  House.  Pray  vidk  in  Kvcb  f«  preoedenU  ot  niinwiiwiiiii  fran 
vtT\  steps  In  this  nmtter.  Tbis  nuumer  of  pro-  atteodance  in  parlianHoL"— "  Orteed,  ' 
cee£iigiii  not  for  your  honour.  he  be  MupendM   whikt  the  Irnpeacluiia 

Sir  William  Joaa.  In  ^  our  proceedings  we    •■ ■*■ —  " 

are  lu  well  to  satisfy  our  own  coneri^iw*  as 
other  mens.  I  amyet  hut  young  in  pariiameut, 
but  what  mnvK  me  is  reama  oflBw.  If  a  man 
be  accuaed  of  crimen,  there  is  not  a  i 
sbould  be  in  cnatody ;  it  may  be,  in 
is  danger  of  AighL  If  hebeaeciued  of  capital 
Crimea,  the  man  may  ruu  awaj',  anil  hazard  bii 
nalBle,  to  mtb  bis  life.  In  aome  capital  cases 
a  man  cannot  be  bttiled ;  but  in  most  cases  bail 
piay  be  taken.  It  is  iiaid,  "be  may  go  any 
if  not  imprisoned;"  so  far,  it  may  be,  wed^ 
vre  it  i  but  the  reason  and  prartice  of  all  olbei 
eonRi  ia  against  it.  I  desire  only  that  your 
■MCfldeaia  may  not  outgo  all  othio'  Coucti  of 

Celand  Ttha.  If  yon  do  any  thing,  and  hare 
MO  nreceiletit  fbr  it,  Hevmour  will  have  all  the 


honour  be  ezpoaed. 

oieocea,  ptay  let  preoedenti  be  searched. 

Ordered;  "niat,  the  searchii^  for  Precedents 
coaceming  the  committing  a  Member  lo  custody 
vben  impeached  in  pariiament,  be  referred  to 
the  Committee  appointed    to    dnw  the   Im- 

Decenditr  IT. 

Sir  William  Pulteney  reports  irom  the  Com- 
mittee to  whom  it  was  referred  to  prepare  the 
Impeachment  agaiQst  Ed^i'anl  Seymour,  esq. 
n  member  of  this  House  ;  and  to  search  pre- 
cedents touching  tlie  Imprisoning  of  Members 
of  this  House,  nhen  impeached  m  parliament; 
Hiat  ibe  eommitlee  bad  directf^  him  to  make 
a  special  report  thereof:  Which  he  read  in  bin 
l^ace  ;  and  afterwards,  driiTercd  die  same  in 
at  the  cleii's  table :  Where  the  same  was  read ; 
and  is  as  fallows : 

**  The  18th  and  imb  king  James,  air  Giles 
HoDipcMon'scase^  whowasGOnimitted  by  the 
House  to  die  Seijeant's  cnstody.  He  made 
his  escape,  and  a  proclamatini  was  iasned  out 
from  the  king  to  apprehend  hint,  (he  reads  the 
IVodamatiaa)  he  being  committed  by  order  of 
the  HouM,  to  be  soit  to  the  Tower. 

"  Sir  J<din  Bamett's  case,  who  was  Judge 
of  the  prerontiTe  court,  in  the  IBth  and  19th 
ILjaoKs:  Reatdved,  That  the  dieriff  of  Lon- 
don do  Mcure  his  pemn. 

"  Kr  William  Penn's  and  Mr.  Bmnkard's 
case,  as  in  the  Journal  1668 :  Penn's  runs  thus: 
"  13  April,  1668,  Onkred,  That  Penn  do  at- 
tattd  the  I4di.»  And  dien  there  is  n  Narrative 
*   ~      '  lemeni   of    Frise-GoocU. 

Thursday  next  he  make 


to  Moaint  Peon  with  this  order,  and  Penn  was 
tB  dehTcr  hia  answer. 
"  A  Immi   from  die  cwiimiiiMWis  ofac' 
I  waaread,  and  the  etidoiGe  was  read; 


■•<*imd  to  hsdnwn  up  against  hiB,  and  to 


"  Mr.  BrunkanI  not  beii^  to  be  fmmi 
tus  coBtonpt  in  the  wari^  the  Jutioe  e 
Howe,  Ordered,   That  be  be   cxpdM 

Mr.  Harbord.  The  piccadenis  mwwted 
sueb  as  the  House  ordered  to  be  ann 
which  were  none  but  OMamil 
peacbments.  Mompesson  ' 
the  se^eant,  but  he  brtdu  fraa  that  can 
and  (be  Lords  ccnsnrad  him;  they  dtgi 
him  from  his  knighthood,  and  fi^'tirhini  a 
of  numey.  BeonetMrred  fiir  the  unirc 
of  OxfiMd,  and  w«  jndge  of  iho  prang 
cout.  He  tetk.  great  aami  of  iudb^ 
bribes ;  he  likewise  waa  tuned  ei*  «l 
House,  but  being  sick  aad  infinn,  was 
mitted  to  stay  at  his  own  Ihmbb.  He  wa 
dersd  to  be  coar^ed  to  the  Ttnrar  by 
sheriff  of  London,  or  to  take  aecHnqr  limn 
for  his  appearance.  Ihere  are  two  odter 
cedents  in  the  late  hmj^  p'*"''"lWi  1 
was  accused  by  the  commwODn  of  noei 
of  taking  prize-goods  out  of  an  Bait  1 
ship :  he  stood  up  to  justify  hhoMif  fi«n 
artides,  and  was  suspended.  PrecefcH 
fximmitmcsit  were  aenrahed.  HasnpanM 
away,  fitc.  Bennet  was  not  cnsnaitted, 
Brunkard  was  aecnaed  for  csnsing  die  di 
ship  to  strike  sail,  when  the  fleet  waa  in 
suit  of  dte  Dutch.  He  did  nut  atteod 
House,  and  was  expelled,  and  articles  wan 
hibited  against  him.  Asftrtheaiale  of  I 
mitment  m  general,  I  find  |wecedents  andi 
of  commiimcnl  for  crimes  of  much  leas  na 
as,  for  speaking  scandakMsly  erf  acts  pai 
19  king  James :  Mr.  Shepherd  said,  *' ' 
the  bill  for  the  better  ke^mg  the  Loid'a 
was  rather  like  a  gin  against  Ihe  papista, 
acakist  (he  Puritans."  Wbetherhehadai 
clination  to  farour  popery,  I  know  not. 
did  not  explain,  in  his  plai-o,  tDgiTesatii& 
totheUouse,  and  waiexpelletT  Sr  £da 
Sawyer  was  the  Ling'n  Mrraut :  he  exi 
douUe  to  the  bonk  of  rates.  Herrttf 
Dawes,  &rmers  of  the  customs,  wen  < 
manded  to  come  to  Whitdiall  to  diseomM 
matter.  By thedukeof fiuckingfaam'a&i 
Sawyer  came  tothe  House,  andlbenwcn 


'liament.  Dr.  Parry,  in  ^ 
Stc.  For  a  hundred  years  last  past,  preoe^ 
are  rlcar  of  cran  mitment  of  persona  impcoc 
UpoB  the  wbok  matter,  I  more,  "  iW 
wUl  commit  Sir.  Seymour  to  the  seneanL 

SitJat^TrtdtuMam.  I  did  attewTlha  c 
mittee  that  you  ordered  to  senreh  fbr  pr 
deub :  the  matter  has  been  evened  by  I 
bord  ;  give  me  leare  (o  express  it  mora  fl 
and  to  hare 


STAT£  TRIALS,  32  Charles  II.  l6%0^^Edumrd  SeymouTy  esq.       [159 


eofgiienuioa.  Mompesioii  was  cbtrved 
le  moQopdy  of  lioensiiM^  inns  and  ue- 
s,  &c.  He  confessed  nis  crime  itahe 
lioee,  and  before  the  Home ;  and  the 
daj,  upon  the  report,  the  House  re- 
.  to  go  up  to  the  Ijords  to  impeach  him  : 
and  not  tiQ  then,  he  was  committed.  He 
■ed  the  crime  he  was  charged  with,  and 
mr  of  flif(fht  he  was  committed.  Sir 
rd  Coke  ddirered  it  as  the  opinion  of  the 
iaaesy  **  That,  mdess  some  persons  would 
tike  fiir  his  forthcoming,  he  should  be 
dbjrthe  seneanf  After  this  vote  for 
—iiUuent,  l&e  Commons  addressed  the 
i  snd  both  the  kiiu^,  to  issue  out  a  pro- 
lin  to  take  him,  being  fled.  Sir  John 
^a  ease  was  much  the  same,  for  cxor- 
M  m  m  court  ofjudicatore.  Sir  Edward 
iDe  nuule  the  report,  ''That  he  had 
many  bribes,  and  had  committed  extor- 
in  his  office."  Dennet  was  not  in  the 
r;  he  was  sick,  and  was  heard  l^his 
d  at  the  committee,  and  the  llouse 
■at  suffer  them  to  be  judged,  till  tfiey 
kcard  hi  then:  pUoes.  Bennet  continued 
nose  of  sickness,  and  his  counsel  being 
,  ^  Whether  he  would  confess,  or  deny, , 
■m/*  they  aaid  '•  Neither.''  Where- 
he  House  came  to  this  resolution,  '<  That 
K  ia  faulty  ;'*  and  so  he  was  ordered 
decosloily  of  the  sherifls,  &c.  to  be 
iilBd  to  the  Tower  of  Lomlon.  The  other 
tests  tjquoilgd  are  foreign  to  this  case  be- 
SH.  Tney  were  committed  upon  Uie  no- 
r  6f  die  tfiing,  and  suspicion  of  flight. 
■WIS  onhr  suspension  of  the  House,  and 
Bid^  for  nis  fliglit,  was  expelled,  and  an 
voted  against  him  ;  but  nothbg 
It.  As  for  Shepherd's  case,  27 
1  know  not  where  Harbord  finds 
Mtin  any  journal  of  that  time.  As  for 
I  CMC,  no  doubt  but  tliis  House  has 
r  of  jiMtein^  their  own  members :  it  was 
kaak  reflecting  upon  the  proceedings  of 
fsdae,  and  so  judged,  "  upon  the  House 
*  You  arc  upon  prosecuting  Seymour 
lisrds  House,  ana  so  I  suppose  your 
ittBcntofhim  b  in  order  to  his  custody, 
I  pooishment.  In  cases  of  information, 
ife  not  erpelled  a  member  witlwut  wit- 
I  beiiig  heard.  It  has  been  moved, 
t  Ifr.  Seymour  mi||^t  be  s(>cured.*'  I 
I  to  you  whether  an  unpeachment  be  not 
iuiat  charse  ?  It  has  aln-ays  been,  that 
rinof  the  House  are  free  from  arrests, 
tfBcaseoftiplony,  treason,  or  breach  of 
MB.  Have  yuu  a  mind  to  think  fit  that 
MV  be  committed  for  an  accusation  that 
r-HaU  does  baU  ?  For  libt-rty  of  a 
I  is  as  essential  here,  as  liberty  of 
!■  Hen.  6*s  time  (it  was  an  unfortu- 
,1  wish  ours  more  fuitunatc)  the 
Mtk  then  aiming  at  the  cnmn,  no 
~  so  much  inliis  way  as  Thorpe, 
Commons,  who  upon  an  oxe- 
him.  This  parliament  did  what 
ftr  ihs  ^ou%e  of  i^oncaster,  and 


from  thence  came  the  civil  wan,  and  so  much 
blood ;  but  the  same  parliament  could  never 
extirpate  the  House  ot  York  till  tliey  garbled 
it.  If  once  you  pass  a  resolution,  ^*  That  an 
information  upon  a  bare  averment  must  be  ne* 
cessarily  followed  witli  commitment,"  I  would 
know,  whether  you  garble  not  the  House  P  But 
consider  the  conse(|uence ;  no  man's  innocence 
can  save  him,  if  his  testimony  is  not  heard  till 
his  trial.  I  would  know,  whether  the  gentle- 
men, who  would  commit  Seymour,  think  he 
cannot  find  security  for  his  appearance  P  Thero 
is  no  likelihood  that  Seymour  should  shun  his 
trial.  1  move,  <*  That  he  may  not  be  com- 
mitted." 

Mr.  Harbord.  Tlie  chairman  was  directed 
to  report  what  he  did,  and  no  more,  and  the 
committee,  if  there  be  occasion,  will  justify  if. 
I  did  not  cite  Hall's  case,  but  the  journals  wers 
brought  to  us,  and  none  beyond  1640 ;  some 
few  notes  the  committee  were  forced  to  oae^ 
and  those  were  brought  by  Mr.  Petty,  which 
we  took  to  be  authentic.  If  we  had  made  no 
search  but  in  the  Journals,  they  were  so  im- 
perfect, thai  we  should  have  had  no  preoe- 
dents  at  all.  Tredenham  told  you  of  the 
Speaker,  Thorpe,  arrested  in  Hen.  e'stime, 
ike.  I  woukl  preserve  the  privilege  of  your 
members,  but  i  remember  about  ten  years  ago, 
there  was  a  design  to  turn  out  eight  or  ten 
membera  who  voted  against  the  Court.  I  laid 
my  hand  to  the  woric,  and  to  prevent  it,  I 
searched  the  outlawry-office,  and  found  56 
members  outlawed,  and  Mr.  Seymour  sat  many 
years  in  the  chair  outlawed.  1  pulled  that 
out  of  my  pocket,  and  saved  those  eight  or  teii 
by  it  that  were  designed  to  be  turned  ont.  I 
know  not  whetlier  Seymour  will  run  away.  1 
have  told  you,  that  my  opinion  is,  to  secure 
him  ;  do  as  you  please. 

Sir  William  Pulleney,  I  observe  that,  upon 
commitment*!,  ^c.  the  person  accused  was 
citlier  committed  upon  confession  of  the  fiu:t» 
or  flight.  But  it  is  moved,  "  Tliat  witnesses 
be  produced  against  Seymour."  But  if  he 
should  know  baore-hanu  what  they  can  say 
against  him,  tlieymaybc  corrupted,  or  me- 
naced out  of  their  evidence.  But  when  you 
have  given  j'our  judgment  that  you  will  un- 
jieach  a  man,  there  is  no  precedent  to  be  found 
that,  when  a  judgment  of  impeachment  has 
been  found  and  carried  up  to  tne  Lords,  that 
you  should  say,  ^'our  metnber  is  not  in  custody. 
It  does  tantamount  prove  a  vindication.  When 
tlie  Commons  came  to  the  Lords  House  with 
the  impeachment  of  Bennet  and  Mompesson, 
they  liad  imprisoned  them ;  and  to  produce 
proofs  liefore  that  time  may  be  dangerous,  and 
of*  very  ill  coasequenoe. 

Sir  Chris.  Muifrave.  There  is  a  groat  deal 
of  difference  betwixt  Mompesson'sand  Bennet's 
case  and  that  of  your  member.  To  preserve 
your  prii^ileges,  it  is  the  best  way  to  go  by  an- 
cient fireccfients :  Mompesson's  witnesses  were 
heard  at  the  committee  before  he  was  chaiged. 
There  is  a  great  deal  of  difference  betwixt  a 
bare  assertion  againata  man,  and  when  yo« 


159]         STATE  TRIALS,  32  CUAKLU  II.  l6S0.~Proeadinga  agmut 

an  usared  of  endence.     One  reHon  why  I  rauxled  the  said  Aiticia  to  be  m^ 

HonpeMOD  was  Mcnred,  wai,  becauw  nobod^v  I  418.) 

wodU  aniwcr  fbr  his  fimh-comiiv.     IF  hii  {      The  Hoiute  being'  aoqiuiiitEd,  "  Tl 


p4inuhiiieDt,  vet  if'Seymoui'  '  "*"'  tieymoar,  e»\.  van  ai 

""  "         tbe  lint  ,  to  tcceitethnr  lonhliips'  pleuure;' 


iras  chalged  in  WntmiDster-HBll, 

Mid  aeowiil  articles  are,  tliry  nooM   take  ae- 

ctnilT  t^  his  appearauce.     VVby  willvnutben    Imet'ltng, 


illcd  ID  ;  and  beiiur  bmnefat  to  tbe  b 

liy  will  vnu  then    kneeling,  tbe  LonlChanot&r  told  bim, 

nrntme  him  ?  And  it  may  be  the   Lords  will  '  tbere  are  Aiticlea  of  ImpeacfanieBt,  fo 


It  Uiefty.  You  irill  puuiih  that  jud^,    Criniei  and  Sliatemeanon,  braogbl  fi« 
1  bclieie,  that  will  not  bail  a  perxnn  Uut  is     Hoiue  at  ComuuUB  a^tiiHt  bim,  wb 
bwhble    bj  law.     Seymour   may   be    fgrtli- 
eomini;  upon  win 
therefore  I  would  di 

Mr.  GomKFay.  Methinki  you  are  iTT^nlar, 
and  a  little  atbichand  with  it.     You  luost  rme 
"  That  tbe  Articles  iDiut  go  to  the  Lordt ;' 
daeSeymourwill standcommitled.andnnthing'  < 
will  appear  ^rainst   him.     iSir  John   Bennet 
waa  baited   by  the  sheriff  of  I^ondon  ;  and  if 
•o,  tievmonr  may  be  bailed  to  betortb-comintc, 
and  tiiere  ia  no  danf^  of  bis  escape,  ii 
caae  of  miidaneaiior ;  therefore  put  the 
Iff  his  Articles. 


should  b«ar  read."     Which  ba 
iKty  for  his  a|>pearai>ce,  and  i  sired  be  might  have  a  copy  of  the  Articl 
DOt  coiDput  him.  a  short  lime  eireD  him  to  pot  in  his  i 

I  thereunto;  nliicb  he  is  ready  to  do. 
Oidered,  by  tbe  l^wds  apnitaal  »'»■<  I 
'  '  ral  in  parliament  assembled,  'IlMt  Edwai 
,  mour,  aq.  may  have  a  copy  at  the  Arti 
Impeachment  bntii^ht  up  by  Ibe  Ho 
Commons  against  hmi. '' 

IJecember  23. 

This  day  being  appointed  for  Edwar 

mour,  «u|.  (o  put  in  his  Answer  to  the  i 

Brr  William    Pouheoey   reports   fit>m   ,ho    ?„  ^P"^'"^'.  ^''"«^»  *"""  »JL"< 

Conmitlee  appointed  to  pit  the  Artid«  against  ■  £?^r'.f^;i!u''''i'*r^.,""'1.*** 
Mr.Seyn«niilntothef<.Snof«nimpeacS.ent.  ^,^,'^.'^'  "'"  Lo^  Cbai^or 
Tliat  the  »iid  Committee  had  aJed  upon  a    ^jJl '""  d"*  ."JTIT'*^  '  ^^  " 

-      -  ^  '  -  i™gea  It  to  be  a  high  and  (ri«at  fiirour 

from  ibis  most  honourable  Huu$e,  (hat  I 
commatulcd  to  answer  so  soon  as  this  da' 
said.  His  Answer  was  short,  [dain,  atut 


which  he  read  ia  hw  place  ;  and  aDer- 
waids,  deUrered  the  rame  in  at  the  clerk's 
talk ;  where  the  same  being  twice  read,  was, 
upon  lht>  qiKstinn,  airreed  to.  ' 

Ordered,  "  Th  Lit  the  said  Articles,  s> 
upon,  be  ii^mssed. 

"  Ordered,  ■'  Tlial  Mr.  Sej-mimr  be  taken 
into  ciistoily  of  the  SFijfaiit  at'Armt  attending 
Ibis  Housi',  for  Kccuring'  bi^  fbrthcomii^,  to 
ansncr  to  the  Iiiipearliment  of  this  Houi 
against  him,  until  In;  shall  have  given  sufficient 
security  Id  ibis  Hnii^e,  to  anstver  to  the  said 
impeuchroent. 

Onlered,  "  That  the  Serjeant  at   Arms  at- 
tending this  House,  bt   impo'.i-ered   to  remve     i,-      i-     l- 
«™.y  IW  11.  for,N.™„,„g  ,,f  ,1,0  ,^d  M,^  i  |i';Sj;^,^"„^^^ 
Se>inour,  to  ansircr  to  the  irnjieacliment  of  '  ^j  ^^^  *     '  '"""".•  • 

this  House."  j      "To the fii,ii Article:  Tlut this m-spo 

Then  sir  Williaia   Portinan.  Mr.  Ash,   and    l>cin|j;  Treasurer  uf  the  Nary,  did  itn-ivp 
Others, proffered  (heii-sc-curitv,  6i:c.  ' '""- :— ii—.i.-    —   ■- - - 


while  be  w 

ie  Ass 

SEVMUI7R,  esq.  to  tlie  Anirles  of  lm| 
ment  exhibiteil  aj^iiist  him  by  the 
mons  assembled  in  Psrliamcnl. 
The  said  Edward  Seymour,  sniinrri 
selTalladranlagcot'cxcejitir 


no  the  in 


u  Lee,  It  is  not  an  ordinary  ci 
Ibr  a  inember  accused  to  have  so  many  t 

know  therefore  that  you  have  made  au  offur 

impmrer  the  serJeant  to  take  his  security.* 

HoL-sE  or  Loans,  Dcrcnbtr  21,  1C80. 


raised  by  tlie  uct  of  pr.rliumeut 
liuned  in  llie  sUd  lirst  Article,  lor  buihli 
ships.  tL;  sum  of  AM.tiU.  U.  lOd  a 
more;  a'l  uiiich  iliU  ItesjiundrM  did  ap 
ihe  usls  mcutionca  ij  th.;  siid  ai-l,  an  I: 
Rcs|iimdent'<i  ticoiunti.  r->aily  to  bo  jirodu 


this  lionourab! 
pear.      .And  tlii^  Hi 


d  90.iiOQl.  • 


iiiident  > 


as  brought  from  tlie  House  of  I 
Commons,  by  sir  Gilbcn  Uenard,  knight,  and  uiuiues  raised  oy  luc  saiu  i 
others  ;  who  did,  in  the  name  of  llie  Couinioas  wlialsocTer. 
assembled  in  parliament,  and  in  tlie  name  of  all  '•  "  To  ibc  second  .irticle ;  This  Itcf-jK 
tbe  ConuDVua  of  Em^laiul,  inipiacU  F.itwarJ  sailh,  Tiia:  he  had  40,00U.'.  p;in-<'l  of  ih 
SeyBKHir,eBq.Girsei-eralbitrhC'riu>efiaiKl>lis-  me:>  raised  bv  iliuact  iiieniiiiiicd  iu  tit.;  i 
dMiieanora  and  OSetkces;  and  ivas  commaiide'l  '  .tnii-le,  in  his  bauds,  r.t  liic  liint-  of  tlic 
ta  exhibit  Artideii  against  him  for  the  said  lii:;h  I  Iictivi\:n  llic  cuiuniis^siottcrs  of  the  nan 
Crime  and  Miadewieaiwra.     I'lw  House  com-     '^  £a.st:atHl  tnuruhams,  iiientioncd  iu  l1 

— }  '-ond  Article.      But  tlus  Krspoiident  d< 

•   Bc«  the Caae  of  Warrea  HaitiDga,  a.D.     that  lie  eierpromisedthesaidiucrchauUi 
|r08,iBaiaC«Ut)CtiMi.  -  ^ 


le  taia  40, 


tliem  the  said  ii),WOl.  or  any  pan  of  it. 


desires,  your  lonisliips  will  bo  ploase<I  to  ap* 
pNOint  some  speedy  time  fur  hiiv  trial  and  to  as- 
sign him  couD»fel  leaniiil  in  tlie  law,  to  assist 
him  in  his  dclencc.  And  your  Petitioner  (as  ia 
duty  bound)  shall  ever  pray,  ^r. 

"  EdW.  SCYMOIR." 

Mr.  S?3'mour  liring*  railed  in  ;  he  was  asked, 

"  W  hat  i.iiunsel  lit^  did  dusirc?'"  And  he  named 

'  Mr.  Pidltxlcn,  Mr.  Keck,  and  Mr.  Thui-sby. 

j      A  Message  was  8<?nt  to  the  House  of  Com- 

I  nions,  by  sir  Miks  FltTtwood  and  sir   \dani 

Oateh'y:    To  aetpiaint  them,  that  the  Lords 

hine  receivetl  a  Petition  fn»m  l\lr.  Strymour, 

wherein  he  desires  a  «lay  may  be  appointed  for 

his  speedy  Tvial ;    that'their'lordships,  Hnding' 

no  issue  Joined  by  replication  of  the  House  of 

Commons,  think  fit  to  grive  them  notice  hcrr<»f. 

Onlc«Hl,   That  Mr.  Pollexten,  Mr.    Keck, 


I6l  J        STATE  TRIALS,  32  Charles  11.  l6&0,^Editard  Seymour,  esq.       [  \6% 

Has  RcvpAmleiit  further  saith,  That,  before  the 
mt  EartJand  merchaots  did  bring  tliis  Itc- 
■onflrnt  any  bUU  signed  bv  the  rammtssionei's 
m  fte  aary  to  be  paid,  tois  Respondent  had 

eiut  said  40.0001.  by  virtue  of  several  or- 
■■gned  upon  him,  to  be  paid  for  the  usc<i, 
MacBordiBg  to  the  directions  of  tlie  said  act. 
"  lb  the  third  Article :   This  lieniondent 
■ilh,  lliat  be  frai  Speaker  of  the  House  of 
GnvMiia  htibrohe  was  Treasurer  of  tlie  Navy ; 
wd  that,  to  Bup|M>rt  the  dignity  of  the  place'of 
flipaker,  his  m^esty  was  graciously  pkiiseil  to 
gmA  onto  this  Respondent  the  yearly  salary 
tf  Sv|W>/. ;    which,  to  avoid  the'  charges  and 
of  die  Exchequer,  was  paid  out  of  the 
~  for  secret  service  ;  which  this 
It  dodi  auknowledge  was  paid,  as  well 
the  times  of  prorogations,  as  during  the 
lof  sessioiui. 
•*Tothe  fourth  Article:   This  Respondent 
■Ih,  Tliat  the  matters  therein  charged  are  so 
aad  uncertain,  that  this  Respondent  can 
no  particular  atiswer  to  the  same :    but 
that  he  did  not  act  alone  in  any  tiling 
of  the  prizes,  hut  jointly 
according  to  his  commi^^iou ;  and 
Matrer  commit  any  such  fraud  and  deceit,  as 
h  At  Slid  Article  mentioned. 

'  jtt  whicli  h^  humbly  offers  to  the  conslder- 
n  of  Ihb  hmiourable  'House. 

**  EowARD  Seymour." 

Tka  Loc^  XThailcdlor  asked  him,  ''  If  this 
MK  the  Answer  he  woiild  abide  by  V/  He  said, 
'hvrv;*  aad  withdrew. 

Oifaed,  Hut  a  copy  of  this  Answer  be  sent 
Ip  ihfe  HoBK  «f  Commons. 

'    January  Z,\^t. 

A  MiIm  was  presented  to  the  House,  from 
Urwf  Seymoitf,  eaq. ;  which  was  read,  as 


*  To  die  li^it  hooouraUe  the  Lords  spiritual 
and  temporal  in  Parliament  assembled : 
ITw  hmmrfe  Petition  of  Edward  Seymour, 
tsqnire; 


i 

I 


^  That  whereas,  (or  some  time, 
kihMh  lain  under  the  weight  of  an  Impeach- 
MftfluuA  d»e  House  of  Commons,  of  several 
V|h  crimes  and  misdemeanors,  to  which  he 
kihgireu  an  Answer  to  your  lordshi|»  ;  and 
e Iw  is  in  no  manner  guiltv  of  the  Articles 
^1  charged  with,  that  his  truth  and  in- 
uy  &  fiiDj  vanifested,  he  humbly 


j  his  trial,  upon  tlic  Imjicaclmicnt  of  the  Houso 
of  Commons,  whereby  he  is  charijcd  with  high 
crimes,  misdemeanors,  aiul  riflciiccs. 

House  of  Commons,  Januartf  3,  1681. 

The  Ans^^TT  of  E^lward  Seymour,  cs4|.  to  the 
Articles  of  Impeachment  exliihitcid  against  him 
by  the  Commons,  assembled  in  [larliament,  was 
read. 

Ordered,  That  a  Commiltee  be  appointed  to 
prepare  Evidence  n<ifainst  I^lr.  Seymour,  and 
manage  the  same  at  his  Trial.  They  are  to  sit 
de  die  in  diem  :  And  arc  im{)owcred  to  scad  for 
persons,  papers,  and  records. 

House  of  Lords,  January  8,  1601. 

Ordered,  That  Saturday  the  15th  day  of  this 
instant  January  is  hereby  appointed  for  thu 
Trial  of  Kdward  St-ymour,  es«i.  upon  the  Arti- 
cles brou;4fht  up  against  him  by  ttic  House  of 
C^ommons,  whereby  he  staiiiU  chai-gcd  with 
several  high  crimes  and  misdemeanorH. 

A  Mes.sage  was  sent  to  the  House  of  C-;m- 
mons,  bv  sir  John  Coel  and  sir  Timothv  Da'd- 
win :  1  f » let  them  know,  that  this  House  h:i\  a 
appointed  the  15tb  day  of  this  instant  January) 
for  the  Trial  of  Edward  SeynuiUr,  e9k\.  upcn  the 
Articles  l>rought  up  a&nunst  him  by  Ihe  Housa 
of  Commons  this  day  se^  ennig-lil ;  ai;d  that  tha 
Commons  may  reply,  if  thiy  thiid-:  lit. 

Two  da%'^  aAcT  this  the  pailiament  M-as  pro* 
ragued  by  his  ii'tijcsty  to  the  '^Oth  of  January, 
and  soon  alter  was  dissolved. 


▼•U  TIIU 


M 


IfoJ         STATE  TRIALS,  52  Charles  n.  l6SO^Proceeibig(i  Mgtdmti 


£76.  Proceedings  against  Lord  Chief  Justice  Scroggs  befor 
Privy  Council;  and  against  the  said  Lord  Chief  Justio 
other  Judges  in  Parliament.*   32  Ch^^rles  II.   a.  d.  16 

Proceedings  BcroRE  the  Privy  Council. 

Articles  of  High  Misdemeanors,  humbly  of- 
fered and  presented  to  the  oonsideratioD  of 
his  most  sarred  Miyestj,  and  his  roost 
honourable  Privy  Council,  ajF^inst  ^r 
WnxiAM  Scroggs,  Lord  Chief  Justice  of 
the  Kinjf's  Bench;  exhibited  by  Dr. 
Oates,  and  Capt  Bedlow,  31  Car.  S. 

HAT  the  said  Ixnrd  Chief  Justice,  con- 
trary to  his  oath,  the  duty  of  his  place,  in  con- 

*  Roger  North,  whose  representations,  how- 
ever, are  always  to  be  received  with  caution, 
lias  interwoTen  his  character  of  Scrog^,  Jones 
and  Weston  into  the  account  which  he  gives 
of  these  proceedings  against  them : 

**  Mr.  Jhstioe  Jones  was  a  very  reverend  and 
learned 'judge,  a  gentleman,  and  impartial; 
Kit,  being  of  Welsh  extraction,  was  apt  to 
warm,  and,  when  much  offended,  often 
shewed  his  heats  in  a  rubor. of  his  countenance, 
let  oflTby  his  grey  hairs,  but  appeared  in  no  other 
disorder ;  for  he  refrained  himself  in  due  bounds 
and  temper,  and  seldom  or  never  broke  the  laws 
of  his  gravity.  There  are,  in  the  Report  of 
the  committee,  certain  relations  tencfing  to  ac- 
cuse divers  of  the  jud^  ;-  and  we  know  how 
such  matters  came  ready  cooked  and  dressed 
up  by  party  men  to  serve  turns,  and  are  pre- 
sented, with  the  worst  sides  fomards,  to  an  as- 
sembly then  wilFmg  to  take  every  thing  in  the 
worst  sense,  and  who,  from  super^oial  coloms, 
eoDohide  deep  in  substabces  ;  which  matters, 
passing  without  hearing,  but  of  one  side  only, 
are  not  much  to  be  regarded.  Of  this  sort  was 
«  story  from  Taunton  Dean  of  the  punishment 
of  one  Dare,  the  very  person  that  affronted  the 
king  with  a  petition ,  as  I  touched  before.  [A  peti- 
tion from  TauntonDean  was  brought  up  by  a  man 
whose  simame  was  Dare:  He,  with  his  fellows 
waited  upon  the  stairs  of  the  House  of  Lords, 
and,  as  tne  king  came  down,  put  the  roll  into  his 
hand  ;  the  king  asked.  How  he  dared  do  that  ? 
Sir,  said  he,  my  name  is  Dare.  But  he  had 
better  been  asleep  elsewhere  ;  for  he  was  af- 
terwards raii^ht  speaking  seditious  words,  and 
was  punished  by  the  judge  of  Assize  ;  and 
the  judge,  wlio  was  then  Mr.  Justice  Jones, 
l»eing  pressed  to  intercede  to  the  king  for  him, 
answered.  He  knew  no  favour  he  deservetl  ; 
which  was  aflenvanls  put  among  the  sins  of 
the  judges,  p.  543.]  This  judge,  it  (teems,  upon 
A  1(^1  conviction  for  seditious  words  spoken, 
inflicted  such  punishment  as  he  thought  the 
crime  deserve*! ;  and,  being  presseil  to  inter- 
ct^e  with  the  king  for  his  majesty's  favour 
to  him,  answered  he  knew  no  favour  ne  deserv- 
ed. There  was  one  of  the  sins  of  tliat  iudge. 
There  was  nothing  more  in  particular ;  but  he 
vfm  takfu  iu,  with   tba  other  jvdgea  of  the 

3 


iemptofthe  king,  bis  crown  and 
set  at  liberty  several  peraoiia  aocoaed  m 
before  him  of  High  TreasoD,  wkhomt 
ing  ever  tried,  or  otherwiae  aoqoitt 
namely,  the  lord  Bradendl,  kc. 

n.  That  at  the  Trial  of  sirGeorgeWi 
and  others,  [See  vol.  7,  p.  589,  of  th 
lection],  at  the  Seaaiona-hoose  in  t 
Bailey,  for  High  Treason,  the  said  Loi 
Justrae  (aocordin|[  to  the  di^ty  of  hi 
managing  the  s^  trial,   did  braw-b> 

King's  Bench,  for  two  or  three  matt 
passed  there  while,  he  sat  as  judge 
court.  One  was  the  refuainsr  to  preset 
kingapetition  of  the  Grand  Jury  of  SI 
about  sitting  of  the  pariiamenf.  If  tfa 
crime,  it  was  a  very  slight  one ;  nor  do 
any  man  of  law  will  aay  that  the  jwi 
bound  to  cany  all  the  crudities  of  jury- 
the  king,  but  are  to  use  their  discretion, 
address,  of  that  sort,  is  no  part  of  thai 
nor  do  they,  in  any  respect,  repres 
county ;  they  are  taken  *  de  Corpora 
'  tatus,'  and  not  pro,  nor  have  any  rati 
bind  the  country  in  any  thing  ;  hat, 
ipatterB,  out  of  the  crovm  law,  they 
single  persons  and  not  ajury,nor  is  any 
trate,  or  other  person,  bound  to  go  c 
errand.  Another  great  sin  of  that  cc 
the  discharging  the  Grand  Jury  three  c 
fore  the  end  of  the  term,  while  tl 
divers  bills  before  them  to  present; 
which  was  an  indictment  of  recusancy 
the  king's  brother  the  Duke  of  Yodc 
discharge,  they  said,  was  precipitous  ; 
usual,  and  done  on  purpose  to  stop  that 
ment,  which  was  an  obstruction  of^tlie  ji 
the  nation.  The  jury  here,  it  seems,  w 
ijCTioramus,  though  from  the  same  i 
shall  soon  hear  of  a  total  obstruction  of 
and  no  crime  at  all  to  be  found.  But 
examine  this  affair  of  the  judges,  first 
solutelyin  the  judges  discretion  whc 
termine  a  session,  and  when  to  detain 
charge  Grand  Juries ;  and  «  de  offici< 
*  non  datur  cxceptio.'  But  what  did  it 
an  Indictment,  that  is  the  cause  of  the 
and  who  else  is  concerned  in  it  ?  But  f 
end  ?  Not  for  any  real  effect,  for  sucl 
may  be  Non  Pros,  or  pardoned  the  n 
ment.  What  then  ?  To  be  a  public  ai 
the  king  and  his  brother  ;  and  that  if  t 
had  stopped  such  an  Indictment,  the^ 
have  it  to  say,  in  order  to  rebellion,  tfa' 
was  no  justice  to  be  had  against  pajaati 
they  roust  right  themselves.  Now  wai 
veiy  careful  provision  of  the  coml,  by 
dmcretion  the  law  undoubtedly  entmi 
irith,  to  stop  such  an  inconvauenoe,  m 
as  it  went  off  nkatly  and  witfaoiit  noiie 


5s]   STATE  TRIALS,  32  Charles  II.  lesO.-^Lord  Chief  Justice  Scroggs.  [l66 

irb  Dr.  Titm  Oites  and  Mr.  Williun  Bedlow, 
•-0  of  the  inincipil  witnesses  tor  the  king  in 


etioA  are  the  only  masters   of  discretion,  and 
9  not  allow  the  liberty  uf  any  to  tlieir  su- 


**  The  next  matter,  which  was  higlily  agspra- 
fted  agwuKt  the  iudges  of  the  King*s  Bench, 
toch  an  iUegal  invasion  of  projierty  as  had 
It  been  heard  of  since  William  the  Conqueror, 
u  a  role  made  by  that  court,  that  a  certain 
•k— liber  mthutatus,  The  Wcckl^r  Pacquet 
'  Adiioe  from  Rome,  *  non  ulterius  imprima- 
Iv.'  Tlie  caae  of  that  book  was  this.  The 
Melaboiir  of  the  faction  at  tliat  time  was 
■f  tomake  popery  as  odious  and  dreadful  in 
»  hUs  of  the  common  people,  as  was  ]K>s- 
Up  ;  for  then  the  inference  of  course  was, 
llbiayoaare  to  expect  from  th6  Duke  of 
ttk,  and  that  the  long  and  the  duke  are  all 
e,  etgo.  Sec.  Upon  this  design  -  a  weekly 
fell  cane  fbrtb  entitled  as  above,  which,  under 
of  telling  all  tlie  extravagant  legends 
'  m  a  buflbon  style,  continually  re- 
CD  the  gjovemment  of  that  time;  and 
»  thai  collection  went  on  and  was  pub- 
I  pieces,  which  the  zealous  gathered 
most  rdigioualy,  and  now  would  ex- 
for  any  softer  sort  of  paper  ;  for 
grows  ao  insipid,  as  old  state 
Tnt  printer  I  think  was  one  Lang- 
or  one  Janeway,  and  had 
against,  and,  I  tliinlc,  convict  and 
for  some  of  them.  But  it  was  an 
nol  easily  corrected  ;  for,  the  outward 
^  '  ^  against  popery,  to  be  accused 
to  be  accuseil  for  taking  the  Pro- 
against  popery ;  and  every  week 
BO  that  a  conviction  of  one  did  not 
li  the  next,  and  no  ordinary  judicial 
"  reach  it  Thus  it  was  very  hard  to 
his  inconvenienoe,  which  may  bap- 
m  M  any  time,  when  popidarity  runs  very 
t  any  government.  At  lens^h  the 
of  tnis  rule  was  made,  but,  1  think, 
BO  frrther,  nor  was  the  printer  taken 
pfbranj  contempt  of  it ;  but  it  was  enough  ; 
K  nde  itidf  was  shewed,  and,  as  I  said,  made 
ireat  noise.  1  do  not  remember  much  ugi- 
Ifan  about  die  reason  upon  which  the  court  of 
h^B-BeuA  took  this  authority  of  making  a 
-'-  '-  J  order  upon  them ;  but  it  seems 
on  that  law  which  takes  away  the 
her ;  for  it  is  therein  declared,  or 
have  resolved,  that  all  jurisdiction 
the  Htar-Chamber  might  lawfully  ex- 
icaled  by  hw  in  the  court  of  King's 
And  It  is  wen  known  that  the  Star- 
made  proviaionary  orders,  as  well  as 
to  obviate  great  offences ;  and 
aa  Hales  (in  a  posthumous  piece)  al- 
~i  the  originals  are  not  extant,  may 
into  the  usage  of  the  common  law ; 
^m  matteiaofpnUic  nusanccM.  With- 
•kL  Ae  point  was  eontrovertible ;  for  it 
kt  mad  on  the  other  ride,  true,  but  then 
foUov  the  natnrt  of  their 


that  case ;  and  encourage  the  jury  impannellud 
and  sworn  to  try  the  uialefactorH,  against  the 


proceeding,  viz.  the  King's  Bench  by  indict- 
ment or  information,  having  no  ground  by  law 
or  precedent  to  proceed  fur  utlences,  extra  to 
the  court,  othen^  ise.  And  when  a  book  is  con- 
vict of  crime,  it  may  be  part  of  the  judgment 
*  quod  non  nhcrius  imprimatur,'  uliich  will 
bind  the  person  defcmlaut.  But  how  inei>t  this 
method  is  to  stoji  such  a  Protean  mischief,  uiWr 
a  little  time,  may  become  sensible.  But  admit 
it  not  to  be  a  clear  case  oii  the  couit-side,  there 
was  ground  enough  for  the  court,  as  they  say 
good  judges  do,  t«)  resolve  it  fur  tlieir  own  ju- 
risdiction ;  and  errors  in  judgment  of  courts  of 
justice  are  not  criminal,  but  corrigible  by  su- 
perior authorities.  Therefore,  in  quiet  times, 
this  question  had  been  carried  into  the  House 
of  Lords  by  a  petition  of  the  printer,  if  he  had 
thought  himself  ffrieved;  and  then  tlierc  had 
been  a  due  consideratiuii  uf  the  law,  and  tho 
king's  counsel  hod  been  heard  upon  it,  and  the 
determination  authentic,  as  upon  a  writ  of  error ; 
or  occasion  might  have  been  taken  by  a  sburt 
clause  in  an  act  of  parliament,  to  Imve  declared 
the  law  one  H'av  or  other.  There  should  be 
always  a  distinction  between  corruption  and  er- 
ror ;  the  latter,  if  Westminster  Hall  may  be 
heard  in  the  case,  is  no  crime,  nor  is  it,  with 
any  aggravation,  to  be  actionable  at  law.  And, 
upon  the  reason  of  these  instances,  it  seems 
that  to  proceed  by  imjieachment,  for  error  in 
judgment,  as  for  crime,  is  contiary  to  the  po- 
licy of  the  English  constitution  ;  in  which  the 
authority  of  courts  of  justice  is  sacred,  and  the 
exorbitances  of  tliem,  when  they  happen,  should 
be  set  right  without  exposing  to  contempt  either 
the  persons  of  judges,  or  Uie  reverence  due  to 
their  stations,  lest  what  is  got  in  the  shire,  is 
lost  in  the  hundred.  But  it  is  seldom  fniuid 
that,  when  ficrsuns  are  fallen  u|)on  in  an  heat,  as 
upon  the  vindicative  turns  tit'  parties,  any  deco- 
rum is  observed,  or  due  steps  taken  ;  for  tliey 
will  always  lie  too  long  or  too  short.  Thus  far 
concerning  the  King's  Bench,  as  a  court,  and 
its  legal  jurisfliction  ;  which,  in  this  instance 
sho  (but  in  nothing  mure)  touched  31r.  Justice 
Jones. 

"  The  case  of  Mr.  Baron  Weston  was  very 
extraonlinary  indeed ;  he  was  a  l(*anied  man, 
not  only  in  the  cvmimon  law,  wh<*rein  he  had  a 
refined  and  speculative  skill,  but  in  the  t:i\i\  and 
imperial  law,  as  also  in  history  and  hunuinity 
in  general.  But,  lieiiig  insup|H)rtuhty  tortured 
witli  the  gout,  became  of  so  touchy  a  temper, 
and  Husce|itihle  uf  anger  and  pusailun,  tliat  any 
affected  or  unreasondbie  up|K>sition  to  his  opi- 
nion v^uld  inflame  him  so  as  to  make  him  ap- 
pear as  if  he  were  mad ;  Ji^it,  when  treated 
reasonably,  no  man  e^er  was  mure  a  gentleman, 
obliging,  condesccnsive,  and  comumnicatiw 
than  he  %vas.  Therefon;,  whiki  a  practiscr,  he 
was  (»bserve<l  always  to  smxecd  better  in  argu- 
ing solemnly,  than  in  inanaging  of  evidence ; 
for  the  adversary  knew  how  to  touch  his  pas- 
sums,  and  make  th^m  difonfer  him,  and  tbca 


l€7] 


ifmiff 


said  witriMsss,  by  his  publicly  upeakinff  slight.  \  deuce,  and  the  misrepeating  and  onitt 
^ly  agairiKt  them  and  their  cri.  j  terial  parts  of  thdr  evid^oe ;  whisr 


]y  and  abnsivf  ly  againKt 

take  advantage  of  it.  But,  at  the*  bottom,  he 
yras  ns  just  as  the  driven  snow,  and,  being  a 
judo-c,  f„r  which  office  he  was  fit,  because  he 
had  ni'itlicr  fi^sir,  favciur  nor  afl'ection  besides 
his  judginrnt,  ho  would  (it'tcn,  in  his  charges, 
ffhin<*  with  his  hurning  and  wit ;  and  a  little  too 
much  of  that  bruu^^htthis  a<Tusation  over  him. 
lie  vias  one  of  a  cliAi'  conduct,  and  by  princi- 
ple, honest  and  just,  and,  as  wc  fuid  in  the  best 
of  that  character,  nn  i\as  he  intreiiid,  and  fear- 
ed not  the  face  of  all  iiuman  kincJ.  He  made 
DO  ceremony  of  flying  in  the  face  of  faction 
at  all  turns,  and,  -being  one  of  thf»sc  they 
call  prcrut^ative  men,  inaccessible  and  unalte- 
rable, he  uas  hatefl  bitttcrly  by  the  party.  And 
to  do  liiiu  and  the  n'st  of  those  gentlemen 
rif^ht.  1  uiiist  needs  say  that  the  prerogative 
of  the  cix/wu  is  a  doctn:ie  so  constantly  recom- 
mendeil  in  the  law  Inioks,  that  a  man  cannot  be 
an  honest  lcarne«l  lawyer,  but  must  be  in  the 
popular  sense,  a  prerogative  man,  nnd,  in  every 
»*ense,  a  hater  of  what  they  call  a  rc*public. 
This  Icanied  judge  was  so  st«auly  in  his  admini- 
atn\tion,  that  no  advantnirc  could  l>e  taken 
o^inst  him  for  what  he  did  ;  so  they  watched 
his  circuit  rhargfcs,  to  iiud  soinowhat  he  might 
M  V  1o  accuse  hun  of  And  the  onW  passage, 
I  find  chnp^-cd  ujion  him,  was  at  Kingston  as- 


servetliem  but  a  parliiumMit.  lie  knew  no  re- 
j>n'sentative(.f  the  nati:m  bit  the  king  (which 
in  an  ai-tual  svw^v^  is  true,  lor,  in  jiarliamont, 
«urh,  IIS  do  not  cli'.)ose,  have  no  actual  mprc- 
f>entati\i' ;  but,  in  a  Ktral  si.it^i?,  as  U»  the  bi:i»jg 
bound  ail  are  repns.iitcjl)  all  jM)wer,  says  he, 
centers  in  him.  (That  is  all  coemve  |M»wcr  )  And 
thru  the  judge,  in  the  towering  of  his  fancy,  says 
'  i'fsiith  lie  (i he  king)  has   wisdom  enough  to 

*  entrust  it  no  nion;  witli  tliesc  men,  who  have 

*  givrn  us  such  late  examples  of  their  wisdom 
'  and  faithtiitiu-ss.^  It  would  In*  hard  to  pro\e 
hen*  \\  lioui  he  spoke  of,  so  as  to  fi-anie,  out  of 
thes*'  w-omIs,  an  uccus'iition  ;  bui  it  s«'ems  there 
was  tio  bt'ttt  r,  and  so  it  c«mc  iM-Jine  the  liousi^ 
of  (*oiuiuons  ;  wtudd  any  one  h:ive  thought  it  i' 

"  ft  is  to  In:  notc<l  thiit,^during this  heat,  as  if 
the  oonunoTi  law  ot' justice  had  l>een  abroga- 
ted, noi.f  of  tbcs(.'  rc\ereud  uu-Ji  were  either 
called  U»  l<i-  lii-aid,  or  had  any  tiuic  given  them 
to  answer  ;  hut  the  censure  of  the  House,  past, 
and,  tor  |>M.us'iiii)«-Mt.  tln'V  were  to  Ih»  impeaeh- 
c«l.  Th«  V  noii'  n^siiiist  4)aron  Weston,  was 
'  thaf  i'  ^  V.  .nf!s,  iuhis  cl.avire,  were  scandalous 
■  to  i,ii    fi  to.  iiiati'iii,  :"i!l  ti'nd'Ug  to  raise  dis- 

*  eon!,'  Vt:.  V  nrw  :■•»«  oioiUnee.  It  hath  been 
the  U'^ai^e  ol  flic  nnuiiion  law,  to  chalice  men 
withriit't  floue,  or  wor-is,  ot'  a  dire*  I  >eiise  <:(>n- 
ken.  Marter  of  agirravation  net er  makes  an 
accusatiou  whove  liie  ^uti)l•et.  uf  itM.'lf,  di»th 
nutlM*arit.  And  mi  caret uj  is  the  law  uf  eri- 
loinai  nattcns,  that  it  riN^uimaii  iudkUu*^  to 


be  certain  to  every  intent,  or  else  it  it  t 
i«-ill  be  quashed.  For  which  reason,  i 
may  be  taken  in  any  harmless  sense, 
the  same  words  will  abo  bear  a  crimiuf 
they  shall  be  taken  in  the  mildeat  leoft 
however,  was  it  reasonable  to  bring 
charge  as  this  against  an,  otlierwise,  u 
tinnaLle  judge?  It  was  much  wonderei 
time,  that,  in  all  this  noise  about  the 
none  were  sent  for  to  the  House ;  th 
was  tliought  to  be,  that  they  were  stoi 
and  would  have  justified  all  they  bad  d< 
that  was  not  thought  seasonable.  Th 
for  his  part,  was  so  tar  from  being  co 
at  the  terrible  sound  of  an  impeachmei 
w  hen  the  other  judges  looked  grave  and 
he  was  as  gay  and  debonair  as  at  a  weddi 
was  only  sorry  that  he  had  not  an  opp 
of  talking  in  tne  House  of  Commons,  ax 
have  (!omp(mnded,  tor  a  moderate  puni 
to  have  had  his  full  scope  of  arguing  1 
case  before  them.  And,  as  tor  impea 
he  longed  to  be  at  it  with  them,  he  ci 
where,  or  lielbre  whom,  provided  h< 
have  his  talk  out.  He  was  prepared  t 
Magna  Cbarta,  and  to  demand  the  J 
pat  iunu  and  his  lawful  challengiw,  and 
that  Ijcx  Terra  was  referred  to  the  coi 
not  to  the  (K»untry ,  and  was  nothinc*  to 
nose  against  his  right  of  trial ;  and,  uf 
law  he  would  have  died  at  a  stake,  and  i 
quittiid  one  iota  of  his  judgment  to 
world.  It  is  pity  such  a  st<»ut  combat 
not  had  a  clear  stage  and  a  fair  enenr 
as  things  fell  out,  they  were  not  so  hard 
**  No  articles  were  ever  preimreil  aga 
of  the  ju(lg(-s,  exn^pt  sjr  \\  illiam  Scro| 
chief  justice  i»f  the  King's-bench, 
whom  articles  were  brought  to  tlie  Hoi 
ordered  t(»  stand  ;  but  i  do  not  fmd  by  t 
that  any  nienil>ers  were  ai»{H>intefl 
I  louse  to  carry  tlR'm  up.  He  was  a  n 
lay  too  o|Wfn ;  his  conrse  of  lile  was  sea 
and  his  discourses  v  iolent  and  intern  per 
talent  was  w  it ;  ami  he  was  master  < 
city  anil  boldness  enough,  for  the  settii 
wliich,  his  |>erson  was  large,  and  hij 
broad.  lie  had  a  fluent  ex)>ression,  an 
g(MNl  turns  of  tliought  and  language, 
coidd  not  avoid  extremities  ;  if  he  did  i 
extremely  so,  and  if  well,  in  «'\ti-eme 
the  plot,  he  was  violent  to  insanity  ;  ai 
receiving  intelligenee  of  a  truer  iul 
court,  he  was  converted,  and  IxTam 
once,  no  less  violent  the  other  wav 
made  the  phn -drivers  and  witnesses  m 
And  U.iti'K  and  IWslbMMlid  him  the  In 
prefer  articles  to  the  king  in  trouneil  aga 
« barging  various  inmioi^ities  ;  and  th 
an  h^'aring.  but,  they  tiiiling  f»f  prnof, 
juHtitied.  The  occasion  of  1 1  is  eon  vers 
was  told  by  the  |iersou  that  administ 
uif  ans  to  him,  was  this.  The  lord  chie 
GOBu:  once  I'roin  WindMur  wiiliik  Iwi 


7ATE  TRIALS,  32  Charles  II.  l6S0,— Lorrf  Chief  Jwiice  Scrogga.    [170 


dieted  were  by  the  said  jury  acqiiilteil 
t  thea  charged  ajj^ainst  them,  and  iully 
I*  the  said  witnesses.'^ 
hat  the  said  Lord  Chief  Justice,  after 
if  tfafesaid  shr  Georj^  Wakeman,  and 
'  Hiyli  Treason,  as  aforesaid,  in  the 
buae  of  the  said  Dr.  Titus  Gates,  and 
un  Bedlow,  and  in  their  gi*eat  dis- 
at  s|)eftking'  of  them  ;  said,  that  be- 

ceil  iu  his  coach;  and,  amonp^  other 
diemsrgs  asked  tiiat  lord,  if  the  lord 
f  (who  wosithen  lord  President  of  the 
ad  really  that  interest  with  the  kiii£f 
led  to  have  f  No,  replied  that  lord,  no 
I  joiir  footman  huth  with  you.  This 
tue  man,  and  quite  altcrcil  the  fer- 
18,  from  that  time,  he  \\M&  a  new  man. 
U  for  hiin  that  the  i>arliament  was 
else  they  had  pursue<l  thi^r  imiicach- 
nst  him,  and  what  an  embroil  it  had 
arliamcut,  is  not  easy  to  conjecture." 
'0  short  account  is  eironcoas ;  "  They 
d  Scm|j;^  forHifrh  Treason,  but  it  was 
It  the  matters  objected  to  him  were 
leiacunors  ;  so  the  Lords  rejected  tite 
tent,  which  was  carried  chieily  by 
fDajiby's  party  and  in  favour  to  him.'' 
mes,  ^h. 

'ranck  Winnington,  in  his  speech  in 
ment  October  36,  1C80,  says,  *<  at 
I's  Trial,  tliose  i>ersons  who  at  former 
d  been  treated  with  that  respect 
le  to  the  long's  evidence,  and  whose 
i  reputation  nad  stooil  clear  without 
IB  adi  other  trials,  were  now  not  only 
tea,  but  their  evidence  prescnteil  t*n 
as  doubtful  and  not  to  be  deiiende<l 
•  at  all  other  trials  of  papists  from  that 
nri.  By  which  many  of  the  frrcat^:;st 
I  Kre  f|uttted  and  cleared  as  to  the 
'iboie  tliHt  were  brought  for  detauiing' 
'■  evidence,  and  subuming'  witnesses, 
hereto,  very  kindly  treated,  and  dis- 
arith  easy  sentencesi,  es|iecially  if  ya- 
ut  if  |iritef4ants,  thou^fh  only  for 
ir  vendinff  some  unUt'en!^  IxKik,  were 
d  Old  la^ly  fined.  liut  1  beg- leave 
■larw  in  the  case  of  one  Care,  who 
ted  lor  priutint;  a  weekly  inteliigt'nce, 
he  FMrket  of  Advice  from  floriie,  or 
lory  of  Popery.'  This  man  hail  a 
main  of  writiu«;r  extraoniinary  well 
aul^ect,  and  that  fiaper  was  by  most 
MWiKhi,  not  only  very  ingeniowi,  but 
■aetiil  at  this  time  for  the  inforniation 
pfey  because  it  laid  open  very  intelli- 
and  ckieats  of  that  church. 


•  Vfoa  an  information  e-iven  to  the 
Kafl^a-bench  ai^ainst  this  Care,  this 
;  *  Onlinatum  est,  quo<l  \a\wt 
Weekly  Pacikct,  6cc.  iH>n  u1- 


vel  pnblicetur  per  aliquam 
)i'f  miupque.  PerCJur.'  I  think 
piittte  leu  than  a  Uital  prohibition  of 
Wf  ftiaf  agaittst  popery."    4  Cobb. 


fore  the  trial  of  sir  Georgrp  Wakeman  (meanin^^ 
the  aforesaid  trial)  the  witnesses  ^meaning  the 
albresaid  Dr.  Titus  Oates,  and  tlie  said"  Mr. 
William  Bedlow)  were  to  be  believed  ;  but  that 
at  and  after  the  said  trial,  they  were  not  to  be 
believed  by  him,  nor  should  not  be  believed  by 
him  ;  or  tc>  that  very  e/lect. 

IV.  Tliat  the  said  Loi-d  Chief  Justice,  by 
reason  of  his  ollico,  haih  taken  upon  him  the 
power  to  oppress  by  imprisonment,  his  majes- 
ty's loyal  subjects;  namely,  Henry  Care,  for 
writing*  and  causing  to  be  printed  (hvers  single 
Hhect  hooks  in  Bn<^lish,  called  The  Packet  of 
Advice  trom  Rome ;  tiir  the  information  and 
discovery  of  the  idolatrous  errors  and  impieties 
of  the  Icomish  church,  to  his  majesty's  io^al 
and  obedient  jirotestant  subjects  (in  this  con- 
juncture of  time  very  useful):  although  the 
said  Lord  Chief  Justice  neither  did,  nor  could 
alled^  or  charge  the  said  Care  with  any  thing 
contained  in  the  said  hook,  that  was  any  ways 
criminal  or  derogatory  to  his  majesty's  laws, 
crown  or  dignity ;  and  refused  to  take  very 
good  bail  for  him,  though  offered  ;  and  after- 
wards less  bail  taken  for  him  upon  his  Habcat 
Corpas  in  court ;  but  by  the  said  Lord  Chief 
Justice's  means,  he  was  continued  bound  all 
the  term  to  his  good  behaviour ;  and  at  the  end 
theref>f  nntil  the  next  term  ;  although  no  par* 
ticular  crime  was,  or  could  be  proved  against 
or  laid  to  his  diarge. 

V.  That  to  the  great  oppression  of  his  ma* 
jesty's  loyal  subjects,  the  said  Lord  Chief  Jus- 
tice, contrary  to  law,  and  in  manifest  breach 
of  his  oath,  hath,  without  any  reasonable 
cause,  imprisoned  a  feme- coven,  and  diverf 
others  his  majesty's  said  suliji>cts,  and  refused 
to  take  bail,  though  tendere<l,  and  the  matter 
biiiluble,  as  in  the  case  of  Mrs.  Jane  Curtis, 
^Ir.  Francis  Smith,  See. 

VI.  That  Uie  Lord  Chief  Justice  is  veiy 
much  addicted  to  swearing  and  cursing  in  his 
<'Oiiusion  discourse ;  and  tu  drink  to  excess,  to 
the  great  disparagement  of  the  dignity  and  gra- 
vity of  his  said  place.  lie  did  in  his  common 
discourse  at  dinner  at  a  gentleman's  house  oi* 
quality,  pubUoly  and  opculy  use  and  utter 
many  oaths  and  curses,  and  there  drank  to 
excess, 

VU.  That  Charles  Pri(;e  beinjj  accused  upon 
oath,  before  the  said  1x ml  Chi«*t  Justice,  to  be 
a  Popish  priest  and  Jesuit,  and  iinpriNuncd  (or 
the  same,  and  also  divei-s  otlior  i>ei-s(nis  accused 
u|Min  oath  for  High  Trca>:ou  ;  :ls  namely,  sir 
Francis  Mamiock,  ICicliard  Vaii'^'ian,  esq.  and 
Daniel  Arthur,  inoivhunt ;  the  said  Jiord  Chief 
Justit*e  s(>t  them  at  largo  ui>on  bail,  without 
consulting  his  mnjesty^s  counsel,  or  his  wit- 
iiessi's,  an<l  against  tdeir  ctrtisont;  divers  of 
\>hich  |K'r8(»ns  have  not  since  ap|)eared,  but 
liave  foH'eitfd  their  recognizances,  and  the 
iiersoDs  not  to  be  found. 

VIII.  That  the  said  I/ml  Chief  Justice,  to 
the  great  discouragement  of  his  majesty's  loyal 
proti*stiU)t  subjects  ;  to  \\w  nianilitst  rncoiirage- 
meiit  of  the  Koman  catholic  sulijects ;  wlien 
inibrmatioii  hath  been  duly  and  legaliy  gifoi 


171]  STAT£  TRIALS,  52  Ch arLbs  II.  iGsO.^Procecdingi  agama 


to  him  of  the  abode,  or  person  of  a  Popish 
priest  or  Jesuit,  and  a  warrant  desired  trom 
him  lo  take  or  search  for  such  priests  or  Je« 
suits,  he  hath  in  a  slighting  and  scornful  man- 
ner refused  the  same,  and  hid  the  informer  ^ 
to  sir  William  Waller,  who  busied  himself  m 
such  matters  mainly. 

IX.  That  the  trial  of  Knox  and  Lane,  at  the 
bar  of  the  King's-bench  court  for  tlieir  misde- 
meanors, in  endeavouring  to  take  away  the 
credit  of  Dr.  Titus  Oa^  and  3Ir.  William 
Bedluw,  two  of  theprinciiNd  witnesses  for  his 
majesty,  iu  the  prormg  of  the  conspiracy  and 
conspirators  against  his  majesty^s  life  and  go- 
vernment of  t^zse  kingdoms  of  Eng^nd,  Ncot- 
land,  amd  Ireland,  the  destruction  of  the  pro- 
testants  and  protestant religion,  and  introducing 
and  settling  of  popery  there  ;  althoug[h  the  evi- 
dence was  so  full  and  clear  a^nst  them,  tliat 
the  jury  found  them  ^Ity  without  goine  from 
the  bar ;  yet  the  said  Lord  Cliief  Justice,  in 
further  discouragement  and  disparaging  the 
evidence  of  the  said  Dr.  Titus  (^tes,  and  Mr. 
William  Bedlow,  would  not,  nor  did  not  give 
any  chaige  to  the  jury  therein,  but  rose  up 
Buddeuly,  after  the  evidence  closed  by  the 
counsel,  and  letl  the  said  court  abruptly,  oefore 
the  said  jury  had  given  in  their  venlict. 

X.  That  the  saw  Lord  Chief  Justice,  knowing 
that  one  William  Osborne  was  in  the  conspiracy 
and  contrivance  with  the  said  Knox  and  Tisne, 
in  the  last  article  mentioned,  to  take  away  the 
credit  of  the  said  Dr.  Titua  Gates,  andf  Mr. 
William  liedlow ;  and  knowing  the  said  Dr. 
Titus  Gates,  and  Mr.  William  Bedlow,  to  be 
material  witnesses  for  his  miyeflty ,  in  proving  of 
the  conspu*acy  and  conspirators,  in  the  said  last 
article  mentioned,  and  had  been  so  againsit  seve- 
ral of  the  said  conspiartors  that  had  been  tried, 
and  were  to  be  so  against  several  others  of  the 
said  conspirators  that  were  impeached  or  accus- 
ed for  the  said  High- treason,  and  were  to  be  tried 
for  the  same ;  and  knowing  the  said  Wiliam  Gs- 
borne  had  been  detected  belbre  the  Lonls  in  par- 
liament assembled,  fur  his  Raid  conspiracy  and 
contrivance  with  the  said  Knox  and  Lane  ;  and 
that  upon  his  own  oath,  tlicrcnpon  denying  the 
fact  in  their  said  cons[>iracy  anu  contrivance  to 
be  true  :  yet  out  of  his  malice  to  tlie  said  Dr. 
Titus  Gates,  and  Mr.  William  Bedlow;  and 
as  much  as  in  him  lay  t*>  endeavour  the  dis- 
paragement, if  not  the*  supuiTssiug  of  the  fur- 
ther  discovery  of  that  hellish  and  damnable 

ert ;  the  said  Lord  Chief  Justice,  without  the 
owledge,  consent  or  approbation  of  his  mu- 
jeity,  or  any  of  Ids  learned  counsel  in  the  law, 
or  the  said  Dr.  Titus  Gates,  or  3Ir.  William 
Bedlow  ;  did  voluntarily  give  the  said  Osborne 
liberty  to  make  an  afhdavit  before  him  upon 
oath,  of  the  trutli  of  the  said  tact,  he  had  be- 
fore, as  aforesaid,  denied  iip<in  his  oath  ;  with 
intent  that  the  same  miffht  be  maile  use  of 
against  the  said  Dr.  Titus  Gates,  and  Mr.  Wil- 
uam  Bedlow,  to  their  disparagement,  and  the 
a|iparent  prejudice  of  bis  miutisty,  against  the 
md  eonspiraton,  in  the  said  High  Treason. 
3CL  lliat  he  the  laid  Lord  Cluer  Justice,  to 


manifest  his  slating  opinion  of  the  evi 
tJie  said  Dr.  Titus  Gates,  and  Mr. 
Bedlow,  in  the  presence  of  hia  mos 
maiesty  and  the  right  hon.  the  hyrds  an 
of  his  majesty's  most  honourable  privy  i 
did  daix;  to  say,  that  he  had,  thought  t 
Titus  Gates,  and  Mr.  William  Bedtow, 
had  an  accusation  ready  against  any  bod 

XII.  That  at  the  assize  holiTeii  a 
mouth  last,  the  said  Lord  Chief  Jwvtio 
presence  of  several  justices  of  the  pe 
the  said  county,  did  say  to  Mr.  Williai 
low,  that  he  did  believe  in  his  cunacien 
Richard  Langhom,  whom  he  condemn 
wrongfully,  to  the  great  disparagrme 
majesty's  crown  and  dignity,  tlie  jastic 
court,  the  jury  and  evidence. 

XIII.  That  the  said  Lord  Chief 
contrary  to  the  dignity  of  hia  plaoe,  di 
merchandize  of  the  triab  of  certain  pi 
be  tried  in  Statfordshire,  and    took 
guineas  in  earnest ;  then  sold  Che  saki 
other  persons,  refusing  to  retnm  the  sai^ 

Siineas  to  those  from  whom  he  had  i 
em.  And  furthermore,  before  the  tri 
George  Wakeman ;  he  the  said  Lon 
Justice  did  bargain  with  two  booksd 
150  guineas,  for  them  to  print  the  tria 
in  c^ai^  they  would  not  lay  down  the 
beforehe  went  into  the  court,  he  wouk 
into  the  court,  but  would  go  into  the  o 
and  if  the  sani  trial  by  reason  of  ha 
could  not  be  finished  in  one  day,  he 
have  100  guineas  more,  or  to  that  ter^ 

The  ANSWER  of  Sir  WILLIAM  SCR 

knt.  Lord  Chief  Justice  of  the  C 
King's- Bench,  to  the  Articles  of  Mi 
Gates  and  Mr.  William  Bedlow. 

I.  Tothe  first  he  saith.  That  tlie  kx 
dencll  was  bailed  by  the  Court  of  King'i 
in  open  Court,  and  afierwards  by  thi 
discharged ;  with  thu*,  that  W^ilhain 
did  inuwrtune  the  lord  Westmoreland 
the  said  loi*d  Bnidenell  dischargetl,  for 
had  nothing  to  say  against  him,  as  he  sai 
lord  Westmoreland.    (See  the  Itules  of 

II.  To  the  second,  be  saith,  That  t 
omitting  or  mlsropeatiug  the  evideno 
George  Waken lau's  Trial,  it  ih  a  re 
upon  the  whole  court  to  suppose  it  tri 
that  they  should  let  it  pass.  But  he  sai 
1^1  r.  Gates  being  a:fke<i  at  that  trial,  whi 
not  cliHrge  sir  («eorge  Wakeman  at  the 
table  with  a  letter  under  his  uwa  hand  a 
ing  the  death  of  the  king  ?  He  am 
He  did  not  know  but  that  he  did :  to  v 
Hns  replied.  It  is  plain  he  did  not ;  lor  tl 
council  would  have  committed  him.  To 
Mr.  Gates  replied,  that  that  council  woul 
mlt  nobody  for  tlie  plot ;  which  mi^hl 
cause  of* the  misdemeanor  of  frowning 
articles  mentioned. 

III.  To  the  third,  he  saith,  he  doth 
member  that  ever  he  expressed  much  oi 
ing  their  credit  beibre  their  trial ;  but  thi 
were  some  paisagesat  that  trial  whid 


rTATE  TRIALS,  32  Charles  II.  l6SO.^Lord  Chief  Justice  Scroggt.    174} 


■t  caoK  of  doubt :   which  he  h<^»efi 
i  do,  wtthoot  making  it  aa  article  of 


nd  V.  To  the  fourth  and  fifth,  he  saith 
ncnons  in  the  articles  mentioned,  were 
A  by  lum  for  publishing  several  libel- 
■cumUIouii  papers,  whicn  were  proved 
bem  upon  oath :  which  commitments, 
a  Fenie-Covert  aluo,  notwithstandincf 
m  and  Mr.  Bedlow's  skill,  were  accord- 
V :  though  there  is  no  law  for  tliese 
o  calliucto  account  for  judicial  acts 

0  €>cher  men. 

a  the  sixth,  which  is  an  insolent  scan- 
ftrreth  himself  to  the  testimony  of  that 
in  cif  quality,  whoever  he  be. 
To  the  fsevenUi,  he  saith,  that  the  per- 
his  article  weie  bailed  and  discharged 
onrt,  where  the  Attorn^ -General  was 
cd ;  bat  indeed  Mr.  Oates  and  Mr. 

1  consent  was  not  asked. 

To  the  eighth,  he  saith,  he  conceives 
Mt  obliged  to  do  all  the  business  that 
if  the  peace  may  do ;  and  though  with- 
iflence  he  mignt  have  fnven  such  an 
IS  is  meotiooM,  yet  he  did  not,  but  a 
A'  his  did. 

I'd  the  ninth,  he  saith,  That  when  the 
IS  tried,  he  told  the  jury  the  matter  was 
id  so  did  the  rest  of  tkc  court ;  upon 
le  went  away,   without  any  compli- 
Mrl  Oates,  to  try  causes  in  London. 
9  the  tenth,  he  saith.  That  Osbom  made 
»aflMavit8  before  him:  the  substance 
ras,  that  one  Bowring,  a  servant  to  Mr. 
od  said,  that  he  hail  heard  Mr.  Oates 
t  the  kingdom  of  En^^land  woidd  never 
f  iBtfl  it  became  eiectne,  and  the  kings 
^  ike  people.    The  other  affidavit  was 
■  «ii  sent  to  him  by  an  order  of  coun- 
e  aandned ;    wherein  ani<»ngst  oilier 
he  swears,  that  though  at  tlie  trinl  of 
■d  Lane,  it  was  asked  where  Osl)orn 
I  Mr.  Gates's  counsel  answered,  tliat  he 
1 ;    yet  Osbom  swears,  that  lie  at  that 
s  at  liis  father's  house  in  the  country, 
I  Mr,  Oates  knew  it ;   that  he  took  liis 
him  the  day  before  he  went,  and  told 
he  went,  and  saw  a  letter  wrote  by  Mr. 
I  his  father  to  send  for  him.     Notwitli- 
^  it  was  carried  at  the  trial,  as  if  he  had 
d  no  man  knew  whither ;   so  that  tlie 
which  the  article  chargeth  me  for  [kt- 
ID  he  maile,  was  not  sworn  before  nie. 
Bk  aaith,  it  is  UKHre  to  be  wondered  how 
IH  sbonkl  dare  to  chargi*  that  as  an  ar- 
•nneanor,  which  ^"as  said  in  the 
je,  anil  yet  repeated  falser  too. 
at  Slonmouth  assizes  he  <lid  tell 
r,  that  he  was  more  unsatisfied  about 
■dHm's  Iriul  tlian  all  the  rest ;  and  the 
Cr.tfaat  he  was  drcflibly  informed  since 
■t  Mr.  Laiighfim's*  study  was  so  si- 
ll he  that  wfi&ed  iu  his  chamber  could 
^isngbam  write  in  liis  study :  which 
low^scvideDoe. 
t  _  .1  f«ith,  the  matter  coBplaiaed  of  is 


a  mere  contract  with  other  men,  of  which  he 
thinks  himself  not  bound  to  give  Mr.  Oates  and 
Mr.  Bedlow  any  other  ac^count,  but  that  by  the 
taking  of  tiienty  guineas  he  lost  forty  ;  and  that 
his  backwardness  to  go  into  the  court  at  Wake- 
man's  trial,  makes  it  look  as  if  he  had  not  had 
ten  thousand  pounds  to  tavour  Wakeman  in  big 
trial. 

If  these  Articles  shall  appear  to  your  majesty 
to  be  frivolous,  or  scandalous,  or  not  true ;  1 
humbly  pray  your  majesty's  just  resentment 
thereon,  in  honour  to  your  coiuls  and  govern- 
ment. And  that  such  an  unknown  attcnipt  may 
not  go  unpunished  ;  that  the  promoters  may  be 
letl  to  be  proceeded  Against  according  to  law. 

Tlie  Articles  of  3fr.  Titus  Oates,  and  Mr. 
William  Bedlow,  against  the  Lord  Chief  Justice 
Scroggs,  were  h^rd  this  21st  of  January; 
1679,  before  the  Ring  and  Council ;  and  u|H>n 
the  hearing  of  both  sides,  Mr.  Oates  and  Cap- 
tain Beiliow  are  lefl  to  be  proceetled  against  ac- 
cording to  law.  But  we  do  not  find  that  the 
Chief-Justice  recovered  any  damages. 


PROCEEDINGS   against  Sir   WILLIAM 
8CROGG8,*  Knt.  Lord  Chief  Justice  op 

THE  KlNG*8-BeNCII,  AND  OTHER  JuDGES,   Of 

Pablument,  S2  Car.  II.  a.  d.  1680. 
House  of  Commons,  November  93,  1680. 

Lord  Russel.  *•  There  are  some  persons  at 
the  door,  who  can  give  you  an  account  of  the 
illegal  proceedings  of  my  Lord  Chief  Justice 
Scroggs,  in  discharging  the  Grand  Jury  of 
Middlesex.' — 

Whereupon,  several  of  the  Grand  Jury  were 
called  iu,  and  some  other  persons,  who  gave 
an  Account  of  the  carriage  of  that  matter,  as 
will  !>«  at  larc:e  recited  in  the  Articles  against 
the  Lord  Chief  Justice  Scroggs. 

Sir  William  Jonet.f  Sir,  The  preservation  of 

*  See  what  Burnet  says  of  Scroggs,  ante^ 
vol.  6,  p.  1425,  and  Roger  North's  character  of 
him  in  the  Note  at  the  beginning  of  this  Case. 

f  Burnet,  after  mentioning  that  he  obtained 
by  means  of  his  "  Memoirs  of  the  Dukes  of 
Hamilton,"  the  acqnaintance  and  friendship  of 
sir  William  Jones,  then  Attorney  General,  pro- 
ctiCfls,  **  He  was  raised  to'uiat  high  post 
merely  by  merit,  and  by  his  being  thought  the 
greatest  man  of  the  law :  for,  as  he  was  no 
flatterer,  hut  a  man  of  a  morose  iempcnr,  so  he 
was  against  all  the  measures  that  they  took  at 
Court.  Thev  were  weary  of  him,  and  were 
raising  sir  John  King  to  vie  with  him  :  but  he 
died  ill  his  rise,  which  indeeil  went  on  very 
quick.  Jones  was  an  honest,  and  wise  man. 
lie  had  a  roughness  in  his  deportment,  that 
was  very  disagreeable  :  but  he  was  a  good  iia«- 
tured  man  at  bottom,  and  a  faithful  friend.  He 
grew  weanr  of  his  employment,  and  laki  i| 
down :  and,  tliough  the  Great  Seri  was  offered 
hi|p,  he  would  not  accept  of  it,  nor  Ktiwu  ta 


Sl    • 


175]  STATE  TRIALS,  32  Cuahles  II.  \6B0.^Proceedhigi  againni 


tlio  flroTemment  in  general,  as  well  ns  our  par- 
ticular Kufottes,  have  a  di'piudaui.'e  \\\y.m  the 
niatttMT  that  ik  now  before  \  uu  ;  in  whieh  there 
are  so  many  uiiscari-ia|(v.'8  mi  coin  plicated,  as 

husiniss,  The  ({uickness  of  his  thoughts  car- 
ried his  vie\^s  far.  And  the  Kouniess  of  his 
temiHT  made  him  too  apt  both  to  suspect  and  to 
despise  most  of  those  that  came  to  him." 

Aitcrwanls,  the  bi^^hop  sjK^akin^  of  the  dis- 
mission of  lont  Danby^s  (larty  and  the  intro- 
duction of  Essex  to  tfie  treasury  in  1679,  says, 
*^  No  |)art  of  the  i-liaiiire  that  was  then  made 
was  more  acceptable  th:ui  that  of  the  judges. 
For  lord  Daiiby  had  brought  in  some  sad  crea- 
tures to  those 'impi»rtant  |M>sts,  and  Jones  had 
the  new  rootlellhi*;;  of  the  Leuch  ;  and  he  put 
in  ^ery  worthy  men  in  tlie  room  of  those  ii^iio- 
raut  judges  that  wt*re  now  dismissed.'*  As  to 
this,  it  maybe  obstrr\id.  that  if  sir  William 
Joiit*s  pissi'vMnl  the  pouer  W  completely  new 
modelling  tlic  Bench,  he  appcais  to  have  eiu- 
pkiyetl  it  u  ith  inore  moderation  than  miprht  l>e 
expected  frum  a  man  oi'  such  a  tt*in}K'r  as 
Uumct  has  di-scribcd  sir  William  Jonis  lo 
ha^  e  b<m.  Of  his  zeal  and  acti\  ity  nsfainst 
loni  Staifurd,  priK>ls  are  to  U>  seen  in  thi  Tri::l 
of  that  lortl.  and  in  the  l\i;-liaineiitary  History . 
He  Mas  out' of  tlK-  luo^t  strenuous  and  peiii- 
aacious  supjHM-ti  rs  of  the  LS'dl  fur  t  xi-lcdintf 
the  duke  of  York.  StH:*  tlie  I'uriiaitK-utary 
History.  See,  too,  1  tiurui't's  Own  Times, 
■«k'»,  40o. 

Sir  \\  iliiain  Teni(>le.  uiciitiouiiiir  ^ir  William 
Jom>  fnterini:  itjii>a  the  Bill  of  L\elu>iun.  bo 
abruptl\  and  m>  desivratih  as  hv  did,  a-lds, 
"  Ami  ihi»  per^ui  u;i%i:isf  the  name  i-f  thi- 
preaii-si  lawyer  i}\'  Kncliuui  and  cvMnmi.*nlv  of 
a  *cr\  vise  uutu,  iH-xidiN  this  of  a  wry  ricli. 
and  «tf  a  ^^ar^  or  rather  liiiiorous  naiun.*,  inaite 
iR'xiple  sreiHT-alK  cuiichhle  that  the  ihliu:^  \ia5 
t.\Ttaiii  an«l  skfu'e.  ttud  would  at  ia<»t  be  ^•.fiittt^ 
on  all  parts.  ^«luto«T  eoumefLiine  W(\^-  Uiiuk 
ai  i*»nsn."  \iid  Swifi  hx»i  in^Ttctl  in  h:s  V;i- 
)kiid;\  Ti<  ihc  thirtl  l*;ui  i.f  Ttiiii-le's  3Uiin»iPs 
th»  f.»lu«i*iMs;  \i'iy  ci*. inr.s  An  ■»•■!■  »te.  ^.hirh. 
ill  h:s  pn-nuv,  li*  VJX"!,  Ti  luplt-  l'.»'.ii  tian  :  ••  Sir 
\\  tl!i Jill  .1  •■!»<■<  \iu<»  re^iuud  \>uc  of  tiie  Ik's! 
s|»^':.ke'.>  'v.\  \\.c  W  i.Nf.  ^'.\y\  u.:.N  xrry  /c;U^»ii> 
iii  ri>  rt^lcii\«'iirs  I'll-  •souTi'tif:'^  iht  \\i\\  i>f 
K \i" Ills  •  •« .  Ill-  « a»  a  ; K  rs. M  of  jjnreat  | '^rt \ 
jp.d  t  irTiiv .  an;!  \xa^ i:  z  iv.t^t:;  a:.  a.'iLVtiiui  to  >a- 
\*  ■.lli.iiu 'IVn:!''.' ,  w.i*  M-  ■}  l»  SeV  hslii  •-U1- 
^'i.  \«»'  in  ilif  iifi.^irv  "1  s.»  uiiaivcptattW  a 
r.v>.vio^'  T'l.Ki  *-f . I .i:- :••-•%  -;:h.  1c»M.  a::-jiiM 
li:-'  K\  1.  *•.  ■!  1»::."  i««  lii."  Ut'ii'"*';  :!:»•  suH- 
»s^:.t'  «:  '* '  :•!  ill  >.«  ^-  ;he  a.;;;i- r  i»  i»«n  ii 
«^>  V'^  :'.  :  •  ;  ■  .i:**'::'  ht  \*a»  vM  .ii.«? 
r\,,H.  X- :•  '\ir.r..i  •.!•  i»..  vmi.  But  y-u. 
•>ji'i  !:  .   '^*    ■'  ..i    .1.-     r'»t\»'»il.tv  I  '  ,.■  i»»  Me  tlu 

•  r-i*  ••    ><:,•.-:.  \"U  'ij^r  iK»»  L'U»»i^hi  us  in.>m 

•     i         ■       '  ■■ 

•  ;.i    K    • 

>ir  ^^  ■  'T2  J-'T**?  U  iTen^rally  rr^Hitcd  if 
faA«e  bivu  iL«-  utat-ri^r' [lie  - JuAtml  Mu^r!4 
Yxvik-aLvia  •.4''tnc  PrxvptLopi  •jt'  tikr  l«o  hM 

fMiaBucflV  tfi  Kjif  Chftikt  iIm 


there  ariseth  some  difficulty  bow  to  i 
them.  I  cannot  but  observe,  how  the 
mation  is  here  ai^ain  mentioned ;  by  wl 
may  concUiile  tliere  lieth  a  fj^reat  weigli 

[4  Cobb.  Pari.  Hist. Appendix,  No.  W 
tchard  1008  ;  3  Kenn.  399 ;  1st  cd 
foke  seems  not  to  think  it  ceitain 
William  wrote  it,  but  yet  to  admit  the 
re]>iitation  that  he  did.     Burnet  says,  ' 
at  tirst  petuied  by  Sidney  ;  but  a  new 
was  luaile  by  Soiners  and  corrected  by 
with  which'  pretty  nearly  agrees  (^k 
account  that  it  %«as  llrst  drawn  up  b\ 
m»on  Sidney,  tlicn  iniprorcd   hy  lord* 
and  XasA  of  'all  corrected  by  the  very* 
sir  William  Jones. 

Ro^'r  North,  whose  lan^^uage  is  in 
sufficiently  un&|tarin^  of  those  whom 
liked,  and*  M  ho  «lisliked  sir  WiUiain  Jo 
only  for  his  political  principles  and  com 
tor  his  prole.isi«»nal  liralry  with  sir 
North  ;    nevertheless  asenbes   to  hi] 
merit.     ''  1  am   persuaded,"  says  he, 
beiiiji;  ill  place,  he  was  very  weary  of 
pnxwcutions,  as  lie  Mas  afterwards  • 
amons;^  the  heads  ot  a  faction  a^nst  tl 
iu  \khich  he  had  sened  :  the  former 
noxious  to  uneasy  reflections,  that, 
attlor  he  exceedeJ,  innocent  blood  mi; 
the  rear  of  liim  ;  and  the  other  touchc 
pututiun,  as  not  eitasLsteut  with  the 
<»f  a  servant,  who   thou<i^h  never  so 
should  not  piibllcly  riy  in  his  quondam 
face,  .ill  w  hich  niatioi-s  must  ur-«nl<  U» 
l.y  one  of  Ins  ikii.'I ration  and   iuii^rui 
who  x.asiio  ill  man  ai  the  bt»ttt>iii.  tho 
iip.l'jiiiy  misiiakeii  in  his  eonduct.     Am 
U'Jievt,  that.  uU  riioi);;  \^^.  aimeil  at  s 
poM   in  the  law.  thin  till,  d  bv  itie   b 
iu^'ti'V  Notih,  and   dirtuted  all  his   . 
waid>   iu   jir.»fK»<iui:  t«»  hiiiiM-f.   in   j 

liiat.    to   ffilA|>JSS    ii:>  ripil    and     Ff-tTr 

miii::  bin  he- this   d;s3])|i.iiiTei1   aiid 
cr*-,*.-;*:!'!  iht-  uiu'-.LMiios^  uj   h:«i  ir.l'nl,   g 
.i>thc  prorTtrs.  :.  ■  '.lad  muu-  ;u^  arils 
X  i«.}*'r.t  .111.1    II TV  iTiilar  :  uU    u  ni:  "n    |„ 
ii«>'U'    iM   r^-^' lvt    iif:ir!\  rHji.-t-    I    ha* 
Aiurlhi' Ovic.-ii  .Mr'.-j'iiCi,!.  Iv  ^ i,i  q. 
iiiM-'h  ;.".»r'»aii.      Hi  ijuu,!  >i,a;t';l.u.  v. 
unh-.jiij.i:  ^-  j-..-?r!y  w,    :^,  w    ,.!.»   rj.»i 
come  i..i«iilu   r-    i.: '..in  re  iit-  w.i*. 
>■»:■■•  v.ri\'t\    a...   v.n:-     wo.'i  ii.tat. 
ri..i-  1  r  ■  £    •«  .k.-  «»  a  »i  .1   f.ji-ii:.^  »!•:  a,iui 
j«.  :  o'  •■!'.  .  -  V. ..^.     lie  ;i.;.t  i  i;p"t.it  1 

^i'.    it.»  .■■»'.t    ;.     Iii-:  1.%  ■»!  I  .  lii.viflit'v  j 

.-"*  S»n'  ^...  .  ^.  1  ...  r  *^.-,^  ^  ,\  t 
:.ir   u   .  .  r-.        ^-. -.1   k:p,   CI 

■••■■■      •    » -I*  ;   .   1  -    'if  knv\ 


« 

c-.?  ■       -     - 

I  ''-■  -4.'.;  .  •  j»  .i       ,■..<:?,  'v.t   » 

1  ■'■•■\.tM    ti  -,»  .    iiin(\-    »;■► '..#  r»'a>   ter 
lU  f>  h"ii*»  la  li".ik:ni;ruini'<!irf .  «lMi 


HATE  TRIALS,  52  Charlbs  II.  l6SO.^Lord  Ckk/JuHice  Scraggi.   [175 

they  should  have  known,  that  though  a  Pro- 
ehuuation  might  be  of  great  use,  to  intimate 
the  observation  of  a  law ;  yet  k  had  never  bcei» 
used  instead  of  a  law.  But  yet  I  do  not 
admire  so  much  at  this,  as  I  do  at  the  dis- 
charge of  the  Crand-Jur}',  before  th^  had 
finished  their  presentments.  Tt  tends  so  rauclr 
to  the  subversion  of  tlip  •.'stabiished  htws  of 
this  land,  that  I  cluix*  pronounce  that  all  the 
laws  you  liuve  ah-eadv,  and  all  that  you  can 
make,  will  signify  uottiing  against  any  great 
man,  unless  vou  can  remedy  it  tor  tlic  futur*". 
I  observe,  tfierc  were  tuo  reasons  why  thi» 
Grand-^ury  were  so  extrajudicially  discharged ; 
one,  because  tliey  would  otherwise  have  pre- 
sent!^ tlic  duke*  of  York  for  a  Papist  ;•  the 


tifjtA  to  petition  by  means  thereof; 
the  best  way  to  reuiove  it  is,  to  find 
Imen  and  contrivefs  of  that  Procla- 
1  onier  to  proceed  against  them  ac- 
» their  deserts.  Without  which,  what 
f  done  in  ■■fifing  the  right  of  peti- 
nil  remain  with  some  doubt ;  and 
:  advised  the  proclaiming  to  the  ^eo- 
it  b  seditious  to  petition  the  lung, 
lat  chvrtiseinent  they  deserve.  And 
1  humbly  conceive,  yon  will  do  well 
r  of  it  as  soon  as  jon  can.  It  is  not 
:hai  the  iVocbmation  shall  be  made 
h  country  gentlemen,  to  get  abhor- 
titioning*;  seeing  the  Judges  thcm- 
'e  made  use  «if  it  to  that  purpose : 

I  oonsidt  of  the  common  aifair ;  wlie- 
p  or  aliiT  the  Rye  discovery,  I  cannot 
•ilher  way,  it  most  sit  hard  upon  sir 
ones's  spirits,  who,  being  a  lawyer, 
mill,  in  the  general,  no  bad  man,  w  as 
his  work  the  formal  wa^ ,  and  hated 
Ho  that  knouing  the  horrid  consc- 
od  hazards  of  that  Plot,  which  could 
ct  to  hiiu,  tlie  thoughts  of  it  wt-rc  a 
I  hifl  mind.    And  it  is  said  an  unoircd 
lim  a  great  cold  ;  under  whi<'h  iii- 
ivin?  lead  at  his  heart,  nature  wp.nted 
aster  the  distemper  ;  so  it  turned  to 
at  icvcr  and  earned  liim  off. 
as  a  fierson  of  a  very  clear  under- 
and  (if  possible)  clearer  expressiuii ; 
e  was  assisted  with  an  extraurdicar}' 
ihad  of  both,  as  also  of  his  own  ge- 
th,  for  that  was  his  foible.     He  ivas 
proud,  and  impatient  of  competition, 
•  more  of  btiLg  lett  beliind,  as  it  was 
c  lo  he  in  the  cfiurse  of  his  prefcr- 
mHjv  he  missed  of  his  desired  post, 
partly  occasioned  a  sort  of  resttess- 
cfa  made  him  commit  several  gross 
the  main  cliances  of  his  tife.     His  feU- 
De%'pr  to  be  disturbed  in  speaking,  nor, 
mrlience  or  emergence,  put  by  the 
od  connection  of  his  thoi^hts  ;  but 
lib  a  constanc3%  steadiness,  and  fleli- 
admirable   in  his  way  ;    so  tliat,  in 
as  counsel,  one  might  mistake  him 
3<!jp.    He  affected  somewhat  of  the 
rase  ot  hi*  own  country,   which  was 
crchirc;    as,  to  instance  in  a  word, 
isteail  of  Although,  as  we  pronounce, 
tt  no  di«i<Ha!itage,  but  rather  set  him 
irtudiedthe  (aw  in  Gray's  Inn,  ami 
t  IB  the  Kinfr's-bench  practice.     He 
dn  general  learning,  as  history  and 
r,aad,  as  great  men  usually  have  their 
>hli  was  to  |irofcsH  of  that  sort  more 
l^pd  to  hiui.    And  accordmgly  he 
gglpany,  wlio  were,  for  the  most 
■■^  nich  as  were  most  eminent  in  his 
LiUqInii,  ^c.  and  I  dare  say  they 
M^B  hb  company,  than  he  in  theim. 
Ipikdbisfelicitifla;  his  infelici^  was 
^I'lniaidB  the  anticourl,  or  rather 
iV|M^  I  umI  conse^pMiilly  mofX  be 
VQl, 


a  fa^  ourer  of  noucoiiforiiiily  ;  for  opposites  to 
goi-emnuiit,  of  all  kinds,  sioni  to  make  but  one 
(HU-ty.  Whatever  his  thoughts  were,  it  is  cer- 
tain this  course  was  wholly  out  of  the  way  of 
his  aims;.  He  had  anutbei*  great  disadvantage, 
wliich  w  as  timidity ;  he  could  not  supiHirt  liim- 
selt  under  any  apprehension  of  daiicfcr.  Once, 
bein£^at  his  house  at  Hautpstead,  about  the  be- 
ginning Ui'Oatc's's  disro^eiTf  whether  for  n*al 
(tr  nirccted  fear  hf  \i\\{:\s  beil,  but  it  is  critiu'n  he 
sent  n:j  cxpivss  lo  his  hous*^  in  London,  to  have 
all  his  hillL'ts  i-eiiioved  out  («f  his  collai's  into  his 
back  %('ir(l,  lest  tlie  jiapists,  with  fireballs 
thrown  in,  shoi:M  fot  his  Louse  on  fire.  And, 
as  he  \^us  apt  to  bo  dejected  upon  melancholy 
r<:ric*ctii>ns,  s;>,  on  the  other  side,  he  wa*:  coni- 
itionly  elated  and  triuinpliant  when  he  had 
tiiirer  pr4)sj>ects.  But  his  greatest  misfortune 
was  his  miNlukeu  i>olitii*8  ;  for  he  thought  the 
croivn  must  needs,  at  Ic^ngth,  truckle  to  the 
House  of  Commons  :  but  this  error  being 
common  to  the  whole  faction  with  whom  he 
conversed,  it  is  no  wonder  it  infected  him.*' 

Tlie  Examcn  contains  a  considerable  number 
of  anecdotes  respiting  su*  William  Jones. 

Dryden,  in  allusion,  1  conjecture  to  the  Bill 
of  Exclusion,  describes  him  m  <  Absalom  and 
Achitophel,'  under  the  character  of 

**  Bull-faced  Jonas  who  coidd  statutes  draw 

To  mean  rebellion  and  make  treason  law." 

*  In  what  Macphcrson  calls  the  life  of  King 
James  tlic  Second,  written  by  himself,  (see  tlie 
Introduction  to  lord  ClariHidou's  Case,  vol.  6, 
p.  291,  of  this  Collection),  the  following  jpas- 
sages  occur  resjiecting  the  l^«sentment  or  the 
duke  of  York:  '<  January,  1681,  on  Oates'a 
affidavit  that  he  had  seen  the  duke  of  York  at 
mass,  and  rec%*ive  the  sacrament  after  the  rites 
of  the  Churcli  of  Rome,  the  Grand-jury,  ailter 
U'ing  discharged  at  Hidca'a-hall,  were  sent  for 
hy  the  Justices  of  the  Old  Bttiky,  and  prpsented 
hiin  for  Hecusancy^  wliich  allowed  a  pretence 
for  the  duke  to  appear  afler  Plroclamation,  as 
the  duke  of  Norfolk  and  others  had  done.  But 
thb  was  neither  sale  nor  practicable,  so  was 
removed  by  Certiorari  to  the  Kin^'s-bench, 
and,  if  necessary,  by  a  NoU  Protequi.  March, 
1681,  Arguments  by  Smith,  a  lawyer,  against 

N 


179]         STATE  TRIALS,  3-2  Ctt  ABLES II.  l6S0i— IV«cccAift  agiriait 


[II 


odier,  hecMXue  they  iirRscnteii  a  IVtitioa  to  be 
deiiyered  to  the  tunif.  Hot  the  sitting  of  the 
parikoient ;  wliich  tfK^y  8aid  it  was  not  their 
Mianefls  to  deliTer.  Tfiongh  I  cannot  but  ob- 
sen  e,  how,  upon  other  occasiims,  tliev  did  re- 
ceire  petitioys,  and  deh^ercd  them  to  the  king^ ; 
and  afl  the  difference  was,  that  thoae  netitioiis 
CO  delivered,  woe  against  sittings  of  parlia- 
menti.  The  truth  is,  I  cannot  miirfa  condemn 
them  fiv  it ;  for  if  thev  were  guihy  of  such 
crimes  as  the  witnesses  Lstc  this  day  given  you 
information  of,  I  think  they  had  no  nason  to 
further  petitions  for  the  sitting  of  a  parftianient. 
But,  Sir,  this  business  will  need  a  hirtber  infor- 


removing  the  dufce  of  York's  Presentment  by 
Ceriiotm,  The  duke's  counsel  not  prepared 
to  answer  a  ttiing  ne«er  yet  disputed,  so  pre- 
vailed with  the  court  to  adjouni  till  the  answer 
could  be  framed,  which  provini;  satisfactory, 
the  Certimwri  was  granled."  Collins,  in  lua 
pDeracc,  calk  the  instrument  an  indictment  of 
the  duke  of  York  for  not  oominf|^  to  church, 
which  was  presented  to  the  Grand-jury  of  Mid- 
dlesex, on  June  16,  1680. 

In  the  volume  of  State  Tracts,  wliich  was 
poUishod  ui  1689,  is  the  foDowing  artide : 

Reasons  for  the  Indictment  of  the  Duke  of 
York,  presented  to  the  Grand- Jury  of 
MkUksex,  Saturday,  June  26,  1660.  By 
the  persons  hereunder  named. 

f .  Brcaiiwe  the  9oth  Car.  2,  when  an  act 
waa  made  to  thnnv  Popish  Remsants  ont  of  all 
ofiioes  and  places  of  tni<Et,  the  duke  of  York  did 
kiy  down  several  great  offices  and  placet  (as 
km  high  admiral  of  England,  apeneralissinio  of 
all  his  majesty's  forces,  both  by  land  and  sea ; 
iro^'emor  of  the  Cinque  Ports,  and  divers  otherH) 
thereby  to  avoid  the  puiushment  of  that  kw 
against  Pi^sli. 

S.  SOth  Car.  2.  When  an  act  was  made 
to  disable  Plipists  from  ^tling  in  either  House 
af  PMiamont ;  there  was  a  proviso  inserted  in 
thalact,  Thnt  it  shouM mit  extend  to  the  duke 
of  Todk.  On  purpose  to  save  his  right  of  sit- 
ting m  the  Lords  House;  thovghlM  refuses 
to  lake  those  oaths  which  Pkoteitant  peers 
oaghtindo. 

3.  That  his  ni^y  in  hbiipeecb,  Hatch  6, 
the  3l8t  y«ar  of  hn  reign,  dott  give  for  •  ran- 
aon  to  the  pariiament,  why  he  sent  hit  hiothcr 
«ut  of  Engkind  ;  because  he  would  leave  no 
mm  room  to  sav,  that  he  had  not  reni6«'ed  all 
cause  which  might  mfloence  him  to  Popish 


motion;  and  ihereforo  I  honWy |f«y it M 
be  referred  to  a  ooaumHee. 

Sir  Hemry  CapeL  lUs  mmar  »  sT  \ 
gveafeesi  monmut.  We  aie  under  the  secad 
of  partiamenta  for  redroMig  our  giie»epe 
and  another  oni  of  pariiMaee^  that  ika  k 
have  its  oourae^  thai  the  jodgea  ehiiiuit  i 
the  law.  I  obaerve  thai  theaa  judgii  i 
grown  omnipotent.  ^  They  have  done  ihi 
things  which  tbey  shonld  hnve  left  ondoe 
This  is  ver^-  fine,  that  judgpta,  w^  must 
upon  the  Bench,  aMHt  he  dropped  at  Wki 
hall,  before  they  cone  to  WeatnSneter-hd 
and  I  know  what  law  vie  nuMt  kavey 


.  f-J^  *««  *Mivc  been  divers  letters  read 
m  both  Howes  of  Pteliament,  and  at  the  Sc- 
cret  ConiBritieca  of  boA  Houses  from  several 
»*«»»Md othcn ai Rome ;  and  also  from 
•*°*'^'f^j»»Kope  and  egento  of  the  Pope, 
■Brt^  foreign  parts,  which  do  apparently 
^ew^  great  conespendenries  between  the 

gg"  ly*^  *n*  ^^  P^-  And  how  the 
j^ggeenM  not  eboaae  but  weep  for  joy  at  the 
«■"»  •flme  of  tbe  duke's  kfteie,  and  what 


great  satKfoction  it  waa  to  the  Poi>e«  to  hi 
the  duke  was  advanced  to  the  Catholic  lefigii 
Thai  the  Pope  has  granted  Bmov'b  to  i 
duke,  sent  him  beads,  ample  indiilgenoes,  w 
much  more  te  this  nurpose. 

5.  That  the  whoiB  House  of  CemmoiiB  hi 
declared  him  to  be  a  Papist  in  their  Votes,  8| 
dav  Ipril  6,  1679.    '  Resolved,  utm.  am,  11 

the  duke  of  York's  being  a  papist,  and  < 
hopes  of  his  coming  such  to  the  erown,  1 
given  the  greatest  countenance  and  enei 
ragement  to  the  present  conspiracy  andt 
'  signs  of  the  papists  against  the  King  and  p 

*  testant  rriigion.' What  this  Conspin 

and  Design  is,  will  appear  by  a  Declaration  mi 
to  both   Houses  'jf  Paruament,  Blaieh 
'  Resnlwd,  neM,  an.  by  the  Lorda  Sjpnrit 
'  and  Temporal,  and  Commons  in  pa"v«" 

*  assembled  ;  tliat  they  do  declare,  that  tl 
'  are  tullv  satisfied,  by  the  proofo  they  h 

*  heard,  there  now  is,  ami  for  divers  years  1 

*  past  hath  .been  a  horriil  and  treasonable  ] 

*  and  conspiracy  contrived  and  carried  on 

*  tlKkie  of  the  po|Hsh  religion,  for  tlie  murder 

*  of  his  maiestv's  sacred  person,  and  for  s 
'  vertuig  the  iroteatant  Religion,  and  the ; 

*  cienl   well    established   government  of  1 

*  realm.' 

6.  TbalbesideBallthisproof,  and  much  m 
to  this  purpose,  it  is  most  notorious  and  evidi 

!  lie  hath  for  many  vears  alMcuted  himself  fi 
Protestant  Churcnes  during  religious  w 
ship. 

These  are  the  Reasons  why  we  behevc 
ihihe  of  York  to  be  a  papist. 

Huntington,  Shatbiburv,  Gray  of  Wi 
L.  Rnssel,  L.  Cavendish,  L.  Branilon,  Sb  1 
vrard  Hui^rford,  kt.  of  the  hath ;  Sir  H 
Cahrerly,  Tho.  Thyn,  esq.  \\'in.  Forrester,  i 
John  lirenchard,  esq,  Tho.  Wharton,  Sir  HV 
Coopo*,  hart.  Sir  Gilbert  Gerrard,  hart. 
Scroop  How. 

The  Jury  was  sent  for  up  by  the  coor 
King's  Bench,  whilst  they  were  on  this  Indi 
ment,  and  dismist,  so  that  nothing  was  fiut 
done  upon  it,  saWng  that  the  Jury  received 
presentment.  And  by  the  disniission  of 
Jury,  a  very  great  number  of  the  indietUM 
weredischaiirged.  A  thing  scarcely  to  he] 
rallded,  and  of*  very  ili  consequence,  not  oi 

!  to  many  private  pcrsoRs  but  chieiBy  to  • 

I  public.  * 


7^ 


111 ]    STATE  TIHALB^  32  Ch ablks  II.  1(80.— £ori  Chief  Jmike  Scraggs.    [  1 82 

those  you  hive  aUrMuly,  at  of  those  you  are 
DOW  making,  we  shall  spend  our  time  to  lit- 
tle purpose. 

Mr.  Saeheverel.  Sir,  the  husiness  of  tliis 
debate  is  a  great  instance  of  our  sick  and  lan- 
guishing condition.  As  our  ships,  forts,  and 
castles,  are  for  securing  us  fttnn  the  danger  of 
our  enemies  from  abroad,  so  our  laws  from 
our  enemies  at  4iome ;  and  if  committed  to 
such  parsons  as  will  tuni  their  stroi^h  upon 
ns,  are  equally  dangerous.  8ir,  we  all  know, 
how  the  government  of  Hcotland  hath  been 
quite  altered  since  his  migesly's  lUistoration, 
by  some  laws  nuide  there ;  pray  let  us  have  a 
care  that  ours  be  not  altered,  by  the  corrupt 
proceedings  of  judses,  lest  we  be  reducMl  to 
the  same  weak  condition  of  defi»fliiig  oimtelves 
against  popery  and  arbitrary  govemmcsit  here, 
that  they  are  there.  If  judges  can  thus  {ire- 
vent  the  penalties  of  the  law,  by  discharging 
grand  juries  before  they  have  made  their  pre« 
sentttienta,  and  can  mala;  laws  by  their  rules 
of  court,  the  gnvenunent  may  soon  be  subvert- 
ed ;  and  thei^mre  it  is  high  time  for  this  House 
to  speak  with  thmie  gentlemen.  In  former 
times  several  judopes  have  been  impeached, 
and  hanged  too,  for  krss  crimes  than  these; 
and  the  reason  was  because  they  had  broke  the 
king'k  oath  as  wdl  as  theur  own.  If  what  hath 
been  said  of  some  of  these  judges  be  fully  prov- 
ed^ they  shall  not  want  my  vote  to  inflict  on 
them  the  same  chastisement.  The  truth  is. 
Sir,  I  know  not  how  the  ill  consequences  we 
justly  fear  fkwn  judges  can  be  prevented,  as 
long  as  they  are  made  durante  bene'vlucito^  and 
have  such  dependencies  as  they  nave.  But 
tliis  must  be  a  woricof  time :  in  order  to  remedy 
oar  present  grievances,  let  us  pass  a  vote  upon 
this  business  of  diseliargli^  grand  juries; 
and  that  it  may  be  penned  as  the  case  de- 
serves. 

Mr.  H,  Sidney.  Sir,  I  would  beg  leave  to 
observe  to  you,  necause  I  think  it  may  be  ne- 
cessary to  to  be  conildered  by  your  comitifttee 
what  an  opinion  was  given  not  long  since  by 
some  of  these  judra  about  printing ;  whicn 
was,  that  printing  of  nan's  mignt  be  pnriiibited 
by  law ;  nnd  aoeordingly  a  proclamation  issued 
out.  I  will  not  take  on  me  to  censure  the  opi- 
nion as  illegal,  but  leave  it  to  your  forther  con- 
sideratSon.  •  But  I  remember  there  was  a  con- 
sultation held  by  the  judges  a  little  before ;  snd 
they  gave  their  opinion,  that  they  knew  not  of 
any  way  to  prevent  printing  by  law  ;  because 
the  act  for  that  purpose  was  expired.  Upon 
which,  some  judges  were  put  out,  and  new 
ones  put  in  ;  and  then  this  other  opinion  was 
given.  These  things  are  worthy  of  a  serious 
examination.  For  if  treasurers  may  raise 
money  by  shutting  up  the  Exchequer,  borrow- 
ing of  the  bankers,  or  retrenchments ;  and  the 
ju^^  make  new  laws  by  an  ill  constniMion, 
or  an  ill  execution  of  tlie  old  ones :  I  eonclude, 
that  parliaments  will  soon  be  found  useless ; 
and  tne  liberty  of^the  people  an  Inconvenience 
to  the  govemment.  And  therefore,  i  think, 
Sir,  you  have  been  well  moved  to  endeavoor  to 


lileiHlniaiins  ftom  those  that  advised  the 

fradanliDaagninat  petitioning.    Seethecon- 

MMejiniiMlnaiMidiaatoMiy,  that  the 

ji4^HMvtui  tlingriefiBceBof  the  country, 

whejaigM  ■lOitmdwss  them,and  we  sh  heire 

akcf  AH  miadcmeanors,  and  what 

in  Hw  nliuu>  Uto  jndm  must  rectify. 

m  pmoBBtien,  tGit  they  must  an- 

it    If  tftMbedutteinWesldfnMer-hall, 

tfmin  jariea  in  the  oomtiT  represent 

IhntktmisB?    Suppotethere  should 

!at  of  murdering  a  man's  lather 

,  8cc.  and  the  jodges  take  upon  them 

fe  the  jury  I  this  stops  all  justk»,  and 

Ibec— Biytnte  wiH  be,  men  will  murder  us, 

M  we  kill  tiiem  acnin.    I  move,  therefore, 

teywi  will  proceed  to  punish  tlie  uOender  in 

dmmat  matter,  and  remedy  the  miscaniage 

NT  me  tang  to  come. . 

Sr  F.  fFtimistfton.    Sir,  I  think  we   are 

to  the  old  tunes  agun,  when  the  judges 

did  thij  liad  a  rule  of  ffovemment,  as 

ssamleoflaw;  and  that  uiey  have  acted 

^wwdihgiy.    If  th^  did  never  read  Magna 

Chii1a,Itlmdttheyarenotfittobehidffes;  if 

itoy  hid  read  Magna  Chairta,  ind  do  thus  so 

onbwT,  th^  deserve  a  severe  chastisement. 

Tiiseniigij  grand  juries,  of  purpose  to  dis- 

ippiBM  thnn  of  making  their  prcicntments,  is 

l»*Hfiiii  Ae  subject  of  the  greatest  benefit 

aid  ssemrity  the  law  hath  provided  for  them. 

If  the  nrigci,  instead  of  acting  by  kw,  shall 

te  ielH  hj  their  own  ambition ;  and  endea- 

wr  to  get  promotions,  rather  by  wttrshipphig 

^  tiling  son,  than  by  doing  justice,  Aus  na- 

lin  vfll  aoon  be  reduced  to  a  miseraUe  condi- 

te.  jSi^ppooe  that  after  the  discharge  of  this 

gnai  jpry,  some  person  had  offered  to  present 

MVB  nundii,  treason,  or  other  capital  crime, 

ftrntsf  tlie  ^rand  jmy  there  would  have 

MOiaUinL  of  justice.    As  fouhs  oominitted 

^JHpi  are  of  more  dai^;erou8  consequence 

«  ntnaa  to  the  public ;  so  there  do  not  want 

of  aeyerer  chastisements  for  them, 

ftrathenk    I  humbly  move  you,  first,  to 

a  yule  npoB  this  businesB,  oT^  discharging 

gnnd  jniea;  and  then  to  appoint  a  oonunitlee 

lionne  the  nrascartiages  of  the  judges  in 

Wsitannoler-haUy  and  to  report  the  same  with 

wiwcfn  to  you. 

CiL  TUhm.    Sir.  as  R  hath  been  obseryed, 

te  ttis  bnaiBeaB  hath  some  reference  to  the 

PMhunliaD ;  ao  I  believe,  there  is  somednng 

If  the  pbt  in  it  too.    And,  therefinre  I  think 

iftUs  pbt  does  not  go  on,  it  will  have  the 

yt  lack  that  ever  ^  had ;  seeing  the 

||%BB,  as  wcQ  as  most  other  persons  in  public 

MHi  have  given  it  as  mudi  assistance  as 

V9teaU.    But  whereas  some  have  spdken 

■if  tficn  judges,  I  desire  to  speak  well  of 

■tltae  Ifamg :  I  am  confident  they  have 

*'Sirad  thonselvea  grateful  to  their  be- 

■»■—;  for  I  do  believe,  that  some  of  them 

'^ypiefaiedto  Aeir  places  of  purpose,  be- 

>i«e  thfev  sfaouM  do  what  tliey  have  done. 

lAWa  gf  tminilm  are  but  dead  letters ;  un- 

KMymi  eaaaeeare  theesecatkw»  as  wcU  of 


I  S3]  STAT£  TRIALS,  32  ChAbLfs  U.  i6SO^Procuding$  ^mMti 


pass  your  censure  on  sonie  of  these  illegal  pro- 
ceedings by  a  vote. 

Mr.  Powle.  Sir,  in  the  front  of  Magfna  Charta 
It  is  said,  ^  nuUi  negabimns,  nuili  differemus 
jiistitiam ;'  wc  will  deter  or  deny  justice  to  no 
tmm :  to  this  the  kin^  is  sworn,  and  with  this  the 
judijres  are  entrust^  bv  their  oaths.  I  admire 
what  they  can  say  for  tnamselvcs ;  if  they  ha?e 
not  read  this  law,  they  are  net  fit  to  sit  upon 
the  bench :  and  if  tliey  have,  I  had  almost  said 
they  deserve  to  lose  their  heeds. — The  state  of 
this  poor  nation  is  to  be  deplored,  that  in  almost 
alln^res,  thejudfires,  wlio  ought  lobe  prcscr- 


was  eomndering'  that  matter,  bol  th^ 
interim  made  their  private  opinioa  to 
to  supersede  the  judgment  of  tbb  Honm 
have  dischaiged  Cvnmd-Jvries  ea  pm 
quell  tbehr  prcsentmenta,  and  abeltor  gr 
miiudslrom  justice;  and  when  jurieani 
sented  their  opinion  for  the  Mttmgof  tl 
l»ment,they  have  in  disdain  tlwofinl 
their  feet,  and  told  them  they  vonld  bei 
spngers  tocanry  such  petitiona;  and  y 
few  da^^'s  after,  hare  cnconnged  all  thai 
6|Mt  their  venom  against  the  govemmni 
have  served  an  ignorant  and  ariiitai 
tion,.and  been  tlic  messengersof  dblMRr 


vers  of  the  laws,  have  endeavoured  to  destroy 

thenb:  andthatto  please  a  court- faction,  they  I  the  king.  What  we  have  now  to  4i 
hare  by  treachery  attempted  to  hrcek  the  bon<f8  |  load  thcni  with  shame,  who  biddefiano 
&.^undrr  of  Macna  Cliaita,  the  great  treasury  >  law  :  they  are  g^lty  c4'  Crimea  aganrt 


of  our  peace.  It  was  no  sooner  passed,  but  a 
chief  justice  (Hubert  de  Burg)  in  that  day,  per- 
suades the  king  he  was  not  boiuid  by  it ;  be- 
cause he  was  under  age  when  it  waspassfd.*  But 
this  sort  of  insolence  the  next  parliament  re- 


against  the  king,  agmnst  their  knowkd 
ax^inst  pofiteritv.  The  w  Iwle  frame  d 
doth  knidhr  and  daily  pclitioo  to  Godtb 
tor ;  and  kings,  hke  God,  may  be  addi 
in  like  manner,  by  petition,  nut  oommnn 


lieiilefl,  to  the  ruin  of  the  pernicious  chief  jus-    like^vise  knew  it  was  lawi'ul  to  petition 


tice.  In  the  tiine  of  ftd.  2,  an  unthinking  dis- 
solute jprince,  there  were  juds^s  Utat  did  insi- 
nuate uito  the  king,  that  the  parhauient  were 
onlv  his  creatures,  and  dependecl  on  his  will, 
anu  not  on  the  fumlaiueutal  constitutions  of  the 
land ;  which  treacherous  advice  proved  the 
ruin  of  the  king,  and  for  which  alt  those  evil 
instruments  were  brought  to  justice. f  In  liis 
late  niajesi^'*s  tiine,  his  misfoi  tunes  were  occa- 
sioned chiefly  by  corruptions  of  the  long  robe ; 
his  iudges,  by  an  extra -judicial  opinion,  gave 


ranee  can  be  no  |dea,  and  their  knowlei 
gravatea  their  cnmes ;  the  children  nnl 
boundto  curse  such  proceedings,  for  h 
lietitioning,  but  pariiameuts  tbey  abhorr 
atheist  pleads  against  a  God,  not  that 
believes  a  deity,  but  would  have  it  so.  1 
and  Belknap  were  judges  too ;  their  I 
gave  them  honour,  but  their  viUainic 
their  exit  by  a  rope.  The  end  of  my 
therefore  is,  that  we  may  address  wa 
our  prince  against  theni :  let  us  settle 
mittee  to  enquire  into  lUt-W  crimes,  and  n 


the  king  po^ver  to  raise  money,  upon  any  ex- 

traonliiiaiy  occasion,  without'  |Kiriiamcnt ;  and  |  doinvf  justice  upoo  thrm  that  ha\c  pervi 
made  tliekingjuclg«*«»fsucli  occasions ;  charity  ,  Ictuii  puige  the  tbuutaiii,  and  the  strea 
(irompts  me  to  think  they  thmurht  this  a  service    issue  pure. 

!^v^i.I?*^il  "*"'  *'l-  ^'^«»°«^''««?!,'^«,"'»>;  '  Then  the  Hous?  a?re«l  to  the  foUow 
w««kea»  the  ro>Til  lu  oiert ;  apd  to  mdeayoiir  ! ..  p„j,„rt  Jurv  bv  anv  judge,  l^foieSe 


the  i^ontrary  crtect. — The  two  ;;jeat  pillars  of 

the  LWtToment,  an^  iutli:n.iv:iis  a-id  juries ;    .MauVnf^ihiTSng^ 

It  IS  this  ffivos  u.  the  titk'  ol  irec  Ik™  tn-hsh-  .  .,  ^  apnoaited  to  Ixs 


means  to  subvert  the  fund 
bm.  9.  Hiat  a  coi 


H  li^      >    L  r  I      '  V''?'^''"'"'  '•"'?'  i  ••  theiiidgesin  \Ve>tniiiwer  hall, 

!^,^T'i"i^     •''•".•:'  "'"'■  """  'J?^-  '"the  samo,«ith  their  opinion  th« 
incr,  and  tried  bv  men  ot  tii.^  squne  <N>mHiiou    i.Uvv...  .«• 


examine  the  proceed 

hall,  aw 

thereon, 

.        _  ..  W 11 

with  themselves.       The  tv.:>  ^iifrrat  and   iin- 

doubttnl  privilejics  of  tlie  |kM>ple,  h^ive  *been 

lately  in\adetl  bv  tiie  juili{v»  that  now  sit  in 

Westminster- hall, ;  th4*y  have  espoused  procla-  ! 

iiuti'ins  asnun>t  law;  the  vha^e  discountenanced  !_.     „  •<.i_^         •*       ^t 

and  op^MMJetl  sevmil  U^ii  arts,  that  tended  to    ^hc  Report  •  of  the  Committee  of  tb 

the  «ittuip  of  this  llou:^*;  t)H\v  have  grasped 
die  legislative  powvr  into  their' own  hands,  as 
iu  thai  uwtaiice  ul'  |iriutiiig;  the  parliament 


*•  House.' 

Whereupon  a  committee  u-as  appoint 
they  sal  sei  eral  da^-s,  and  tluni  made 
lowing  Report : 


•  «M  Bohwd,  1  ta.  i  lUpia,  p.  903.  fol.  Ed. 
•r  1T43L    Smmmm  jwiiiiiiy  avalM  Ua- 


-Vi 


■•^ 


of  Commons,  anpointed  to  exam 
Proceeding  of  the  Jldgss,  &c. 
day,llec.  23, 1680. 

This  CoBunitlee  being  inffunned,  thg 
nity-term  bsl,  the  court  of  KingV-ki 


*  '  1  nppauft  John  Wright, 
ChinraH.  to  pri^  llwK  ^ 
BnnliHk  MM  NoiMk  noiHad  hv 
« lif  to  Ike  «ite  «rAe  HooB  «r  Coi 


PATE  ntlALS,  32  Ch  AHLES  If.  1 680,— Lorrf  Chief  Justice  Scrcggs.    [  1 86 


le  gnnd-jiirjr,  that  senred  for  tlie 
Onbloii,  mthe  county  of  Mid- 
mynoMnlinaiiBer;  proccededto 
ilbettme,  and  found  by  the  infor- 
CMs  Umfinerille,  esq.  foreman  of 
Ti  Bdwiid  Proby,  Henry  Gerard, 
wth,  goitfeinen,  also  of  the  said 
■the  list  of  June  hst,  theconsta- 
If  ibe  ssid  jury  were  ibiind  defec- 
IRMBdng  the  papists  as  they  ought, 
«  were  ordered  by  the  saia  jury  to 
ff  pmentments  of  tliem  on  the  26th 
a  which  day  the  jury  met  for  that 
vbeo  several  peers  of  this  realm, 
pcnom  of  honour  and  quality, 
OB  a  bill  aganst  James,  duke  of 
ttcmung  to  churcli :  but  some  ex- 
■f  Hken  to  that  biU,  in  that  it  did 
I  m  nod  doke  to  be  a  papist,  some  of 
■M  the  said  persons  of  qnalii^  to 
Uon  theroD.  In  the  mean  time, 
ibonr  after  they  had  received  the 
Mot'  the  jury  attended  the  court  of 
^  whli  a  petition,  which  they  de- 
WR  to  present  in  their  name  unto 
Ar  die  silting  of  this  parliament. 
itlieLord  Chief  Justice  tScroggs 
'  temples,  and  on  pretence  that  they 
M  in  court  (though  tuenty  of  tlic 
kscribad  the  petition),  sent  tor  them 
raaUdispatcn  them  presently.  The 
■ae,  and  their  names  called  over, 
t^  their  desire  that  the  court  would 
r  Dehtion  :  but  the  chief  justice 
QT  had  any  hills  ;^  They  answeccd, 
Bdk!  elms  were  drawing  them 
Ipoa  which,  the  chief-justice  said, 
M  make  two  works  of  one  business. 
ioD  being  rea'i,  he  sakl  this  was  no 
ir  chai^,  nor  was  tliere  any  act  of 
liat  required  the  court  to  deliver 
ry*s  petitions:  That  there  was  a 
about  them;  and  tliat  itu-as  not 
c  court  should  be  obliged  to  run  on 
;  and  he  thou^t  it  much,  tliat 
ome  with  a  petition  to  alter  the 
ledaicd  in  the  news-book.  The  jury 
1  it  not  to  impose  on  the  court,  but 
eshad  done)  with  all  submission 
t;  but  the  court  refused,  bidding 
turn  than  their  petition.     And 

■  other  peraon  presume  to  print 
i  Oeeem.  1680.  W.  Wiluams, 
Ib  former  editions  of  the  State 
qpoit  was  inserted  twice,  viz.  in 
I  without  the  Impeachment  and 
m  liMd  Chief  Justice  Scirog]^ 
■ilM  Fvliament;  and  again  m 
A>  iddition  of  those  arUdes.— 
liiiBK  of  the  iransaetion  says, 
1^  iciMtiop  that  in  the  tor- 
li  ibe  crawn  never  wanted  a 
m  bench  of  judges  to 
raHB  ware  mraMd  uninst 
and  the  Kbortiei  ofEiig. 


BIr.  Justice  Jones  told  thorn,  they  bad  meddled 
with  matters  of  state,  not  given  them  in  charge, 
but  presented  no  biUs  of  the  mattera  given  in 
charge.  The v  answered  as  before,  they  had 
many  before  them,  that  would  be  ready  m  due 
time.  NotwithrtaiMling  which,  the  aaid  jus- 
tice Jones  told  them,  they  were  discharged 
from  further  service.  But  Philip  Ward  (the 
derk  that  attended  the  said  jury)  trried  out,  No, 
no,  they  have  many  bills  before  them  ;  ibr 
which  the  court  understanding  (as  it  aeems  to 
this  committee)  a  secret  reason,  which  the  dedc 
did  not,  reproved  him,  asking.  If  he  or  they  were 
to  give  the  rule  there  'f  The  crier  then  tokl  the 
court,  they  would  not  receive  their  petition ; 
the  chief-justice  bid  him  let  it  alone,  so  it  was 
left  there  ;  and  the  jury  returned  to  the  court- 
house, and  there  found  several  constablea  with 
presentments  of  papists  and  other  offenders,  as 
the  jury  had  directed  them  on  the  3l8t  before^ 
but  could  not  now  recei^-e  the  said  present* 
nients,  being  discharged ;  whereby  much  bu« 
sineas  was  olwtnicted,  though  none  of  the  said 
intbnnants  ever  knew  the  said  jury  discharged 
before  the  last  day  of  the  term,  which  was  not 
till  fonr  days  after.  And  it  further  appeareth 
to  the  committee,  by  the  evidences  of8amuel 
Astn*,  Jasper  Waterhouse,  and  Philip  Ward, 
clerks,  that  have  long  ser^  ed  in  the  said  court, 
thct  they  were  much  surprised  at  the  said  dis- 
charging of  the  jur}%  in  that  it  was  ne\'er  done 
in  their  memory  belbre ;  and  the  rather,  be- 
cause the  said  Waterhouse,  as  secondary,  con- 
stantly enters  on  that  grand  jury's  paper,  that 
the  last  day  of  the  term  is  given  them  to  return 
their  verdict  on,  as  the  last  day  but  one  is  given 
to  the  other  tivo  grand  juries  of  that  county, 
which  entry  is  as  lolioM-rlh : 

Trmit.  S'J  Car.  '2.  '  Juratores  liabent  diem 
'  ad  vertHiictum  suum  rc«ldendum  usq;  diem 

*  Mercurii  proximo  jMibC  trcsbeptimanassanctn 

*  Triiiitatis.'  Being  the  lost  day  of  the  term, 
and  so  in  all  the  o3ier  terras  tlie  last  day  is 
given  ;  which  makes  it  appear  to  this  commit- 
tee, that  tliey  were  not  in  truth  discharged  for  not 
having  their  presentments  ready,  since  the  court 
had  given  them  a  longer  day,  but  only  to  oh* 
struct  their  further  prM^eediugs :  and  it  appear- 
eth by  the  evidence  atbresaid  to  this  committee, 
that  the  ibur  judges  of  that  court  were  uresent 
at  the  discharging  of  the  said  jury,  and  it  did 
DfA  appear  that  any  of  th^n  did  (fisseut  there- 
in ;  upon  consideration  whereof  the  committee 
came  lo  this  Resolution  : 

**  UesoU'ed,  That  it  is  the  opinion  of  this 
«  committee,  that  the  discharging  oft*  the  grand 
*' jury  of  the  hundred  of  CHsmlston,  in  the 
<*  county  of  Middhiscx,  by  the  court  of  King's 
**  Bench,  in  Trinity  term  last,  before  the  last 
*'  day  of  the  term,  and  before  they  had  finished 
**  their  presentments,  was  illegal,  arbitrary, 
'*  and  a  high  misdemeanor." 

This  Committee  proceeded  also  to  enqmre  into 
a  rule  of  the  court  of  King's-bench,  lately  made 
acainst  the  publishuig  of  a  hook,  called  The 
Weekly  PSMKet  of  Advice  from  Rome ;  or,  Th« 
History  of  P^^poy :  tad  Sunud  Aftey,  gent. 


1 67]  STATE  TRIALS,  3:2  CUAftLBS  II.  l6SO^Pro€eeiing9  wgMmi 

Examined  thereupon,  mfoniied  this  coinmittee, 
that  the  author  of  the  said  book,  Henry  Carr, 
had  been  informed  against  for  the  same,  and 
Ind  pleaded  to  the  imormation ;  but  before  it 
was  tried,  a  rule  was  made  on  a  motion,  as  he 
aupposeth,  against  the  said  book ;  all  the 
jndgps  of  that  oowt  fas  he  remembeni)  being 
present,  and  none  dissenting.  The  copy  of 
which  rule  he  gave  in  to  thm  oomtnittee,  and 
is  as  folkiweth : 

*  Dies  Mcrcurii  proxime  post  tres  S^manas 
<  sanctm  Trinitatis.    Anno  S8  Car.  3  Bagia. 

*  Ordinatum  est  quod  liber  intitulat.  The  Week- 

*  Kr  Pteket  of  Advice  from  Rome ;  or,  The 

*  Hhstory  of  Popery,  non  ulterius  imprimatur 

*  vel  publioetur  per  aliquam  Personam  quam- 
'ennq;     Per  Cur.* 

And  this  committee  admiring  that  protes- 
tant  judges  should  take  offence  against  a  book, 
whoM  cTiief  design  was  ta  expose  the  cheats 
«nd  foppery  of  popery,  enqnined  further  into  it, 
«nd  found  by  the  evidence  of  Jane  Curtis,  that 
the  said  book  had  been  licensed  for  several 
months,  that  her  husband  paid  for  the  copy, 
and  entered  it  in  the  hall-book  of  tlie  company. 
But  tor  all  this,  she  could  not  prevail  by  these 
reasons,  with  the  Lord  Chief  Justice  Scroggs, 
to  pennit  it  any  longer;  wlio  said,  it  was  a 
scandalouB  libel,  and  against  tlie  king's  prochi- 
mation,  and  ho  would  ruin  her  if  ever  she 
printed  it  any  more.  And  soon  after  she 
was  served  with  the  said  rule,  as  the  au- 
thor, and  other  printers  were;  and  by  the 
author's  evidence  it  apiiears,  that  he  was 
taken  and  brought  before  the  said  Chief 
Justice  by  his  warrant  aliove  a  year  since,  and 
upon  his  owning  he  writ  )>art  ot'tbat  hook,  the 
Chief  Justif^c  called  him  rociie  and  otlier  ill 
immcfi  ;  saying,  he  would  fdlall  the  gaoU  in 
England  with  such  rogfues,  and  pile  Uiem  up 
as  men  do  faggots ;  and  so  committed  him  to 
prison,  refusing  sufficient  bail,  and  saying  he 
would  gaol  him,  to  put  him  to  charges ;  and 
his  lordship  observed  his  wnrd  punctually 
therein,  forcing  him  to  his  Habeas  Corpus, 
ami  then  taking  the  same  bail  he  refused  before. 
Upon  which,  this  committee  came  to  this  Re- 
solution : 

"  Resolved,  That  it  is  the  opinion  of  the 
*«  committee,  that  the  rule  made  by  the  court 
'*  of  King's- bench,  in  Trinity  term  last,  againftt 
«•  printing  a  book,  called  The  Weekly  I^u;ket 
^*  of  Advice  from  Rome,  is  illegal  and  arbi- 
«'  trary." 

And  the  C*ommittee  proceeded  further,  and 
upon  information  that  a  very  great  latitude  had 
been  taken  of  bte  hy  the  judges,  in  imposing 
fines  on  the  persons  found  guilty  before  them, 
caused  a  transcript  of  all  the  lines  impOwd  by 
the  King's-bcnch  since  Easter  term,  hi  the 
fiSth  of  Kis  majesty's  rei^,  to  be  brought  be- 
fore them,  from  the  said  court,  1^  Sanmel 
Astry,  gent.  By  the  jierwal  of  wIiiq|i.  it  u^ 
Beared  tothis  cwmuiHat,  flwit  1^  •"  *^ 
lheoffiBBe«,  woAihelSMfti^^ 


which  being  an  very  numami»  tlwo 

reftr  tbemaelvea to  thoae  reoorAi  iat 

neral,  instancing  aoie  partjenliri .  m 

TrinittPCar.  S.  UpoaJ.BnrirBia 

geoti  on  aa  lafonnBtMNi  btjMUUum 

ed  book,  called  The  Lgag  IMtowut 

ed;  in  which  iasetfortf  then  ward 

k*  any  man  tldnk  it  stauigQ^  Ant  wi 

it  treason  for  yoa  to  Ht«Ml«|3too 

our  laws;  for  if  in  ihm  fint  parik 

Richard  2,  Grimes  aad  WeMoOi  ft 

courage  only  were  aiyodged  gfikj 

treason  for  surrendering  the  phoea  oi 

to  their  trust ;  how  modi  mora  ya 

turn  renegadoes  to  the  jieople  that  < 

you,  and  as  much  aa  m  you  lie  i 

not  a  Uttle  |iitifnl  casde  or  tmn  he 

\egal  defonoe  the  people  of  EoglBiid 

their  lives,  liberties,  and  properties 

Neither  let  the  vam  pentianon  dri 

that  no  precedent  can  be  fomid, 

English  parliament  hath  hanged  ap 

though  peradventure  even  that  moy 

ed  a  mistake;  .for  an  unpreoedenti 

calls  for  an  unprecedented  pnmshaii 

if  you  shall  be  so  wk^ted  to  do  the 

rather  endeavour  to  do,  (for  now  tc 

longer  a  parliament)  what  gnaaa  i 

dcncc  you  can  have  that  none  will  be 

worthy  to  do  the  other,  we  caimo 

stand :  and  do  faithfolly  promise  if ; 

worthines  provdre  us  to  it,  that  we 

our  honest  and  utmost  endeavours  (v 

a  new  i>ai1iament  shall  be  called)  t 

such  as  may  convince  you  of  your  i 

The  old  and  iiifaUihIe  obaervatMm,  T 

liamcnts  are  the  Pulse  of  the  Pcof 

lose  its  esteem ;  or  }'0U  will  find, 

your  presuraptkm  was  over-fond  ;  I 

it  argues  but  a  bad  mind  to  sin,  bee 

believed  it  shall  not  be  nunished.'    T 

ment  was,  that  he  be  fined  1,000  ra 

bound  to  the  good  behaviour  ftbr  seve 

and  his  name  struck  out  of  the  roll  of  t 

neys,  without  any  ofience  allrdged  in 

vocation.    And  thepuUkhing  the  tt 

sisted  only  in  superseftting  a  pococ 

this  inck)6ed,  to  the  East  Indies.    Wi 

he  not  being  able  to  pay,  (living  only 

practice)  he  lay  in  pnson  for  three  ye« 

mi^icsty  gradouriy  pardoned  Uro,  and 

mended  him  to  be  restored  to  his  place 

attorney,  by  his  warrant  dited  the 

December,  1679.    Notwithftanding  n 

has  not  yet  obtained  the  nid  raioratj 

the  court  of  King'a-bench. 

Hil.  S9  and  30  Car.  9.  UpOB  Jol 
rington  of  London^  gent,  for  ifieBkii 
words  laid  in  Latin  tons  :  *  Qnod  mi 

*  beraatio  de  tribtia  ftatibas  oaonlik 

*  rebdho  effuritin  regno^  ot  non  i 


teeoftiOOOL 


mUty,hM 
wevHiBn 


STATE  TRIALS,  3S  Chables  IL  l6BO.^Lord  Chuf  Justice  Scroggs.    [  l  gd 


•  af  TaiioB,  icglioiier,  im  vk  Infbrma- 
V  fffmliag  a  buok,  called  '  An  Appeal 
CohSst  to  the  City/  iettinif  forth 
la :  '  We  iu  the  country  have  done 
m  dning  fer  the  geiierality  ^food 
ui  paribiBent :  but  it  /as 
vere)  they  must  oe 
whenever  tney  come 
ti€  the  suhject,  we 
,  Mt  Uamed,  if  the  Plot  takes 
m  al  prohahility  it  will,  (hir 
■re  Ml  then  to  he*  condeinneil,  tor 
beia^  suffered  to  sit,  occasioiiCHi 
^^Jadgmcntto  pay  500/.  fine,  star.fl  on 
^  an  hour,  and  §five  sureties  Ibr  the 
for  three  yfors.  And  the  said 
I  Ilwvis  inlbnned  this  committee, 
krd  cUefjustice  Scroggs  pressed  the 
■  to  add  to  this  judgment*  his  being 
dy  wlHpt ;  but  Mr.  Justice  Pemborton 
if  Hp  hM  bands  in  admiration  at  their  se- 
rthsiaiB,  Mr.  jMstii*e  Jones  pronounced 
dJfMBt  afiaresaid  ;  and  he  remains  yet  in 
I,  aaahk?  to  pay  the  said  fine. 
■  ailhalandHiy  wliich  severity  in  the  cases 
MHUsncd,  this  committee* has  observed 
lid  Ctoiirt  hii:.  not  wanted  in  any  other 
isBcxtxaordinary  compassion  and  mercy, 
^  lhei«  appeared  no  public  reason  judi- 
riBlhalrial;  aa  in  particular : 
L  31  and  39  Car.  2.  Upon  Thonnas  Knox, 
Wft^  on  an  iadietment  of  subornation  and 
against  the  testimony  and  life  of 
fiv  ndomy  ;  and  also  against  the 
.  of  Waiian  Bedloe ;  a  fine  of  SOO 
hi,  a  yaar's  imprtsonment,  and  to  fllnd 
W  the  good  behaviour  for  three  years. 
Tv.  Upon  John  Lane,  for  the  same 
jafceoflOO  marks,  to  stand  in  the 
b^AvB  hour,  and  to  be  imprisoned  for 

(■^M  Cir.  9.  Upon  John  Tmborough, 
K  •  aa  IndietHient  for  subornation  of 
|hB  Angislo,  teadinff  to  overthrow  the 
rih  iyaiuf  of  the  Pfot ;  the  ssid  Tasbo- 
#^WiBf  anaed  to  be  a  person  of  good 
g,  a  lie  of  100/. 
^T9f.  Upon  Ann  Price,  for  the  same 


y^yCir.  t.  Upon  Natham'elTliompson 
jWihM Badcock, on  an  infhrmalkm  for 
prgipabfiAhiga  weekly  libel,  called 
?!  nM  DoBMStie  Intelligence,  or.  News 
kOhy  Bad  CountiT,"  and  known  to  he 
a  fine  of  3/.  6s,  Bd.  on  each 

Matthew  Turner,  stationer, 

for  vending  and  publishing  a 

**  The  Oxnpendium ;"  wherein 

rthanlifln  in  the  late  trials  of  the 

"fhilMi,  even  by  some  of  these 

ilhvB,  ii  li^^  tnaigned;  and 

•^  forAa  kin^horriUy  aspersed : 

%fc  asBHnan  notonoua  popish 

to  pay  a  fine 


^i^mitCtUiColkctKMi. 


of  100  marks,  and  is  said  to  be  out  of  prison 
already. 

Trill.  3S  Car.  2.  Ufion  •*—  Lovcland,  on 
an  indictment  tor  a  uutorious  conspiracy  and 
subornation  a^iiist  the  life  and  honour  of  the 
duke  of  Buckingham,  for  SHodoniy,  a  tine  of  5/. 
and  to  stand  an  hour  in  the  pillory. 

Mich.  3Q  Car.  2.  Upon  Edward  Christian, 
esq.  tor  the  same  oftence,  a  fine  of  100  marks, 
and  to  stand  un  boiur  in  the  pillory.  And  upon 
Arthur  Obrian,  for  the  same  ofli^cc,  a  fine  of 
20  marks,  and  to  stand  an  hour  in  tlitt  pillory. 

Upon  consideration  whereof,  this  Committee 
came  to  this  Kesolution : 

"  Resolved,  That  it  is  the  opinion  of  this 
"  Commtttee,  that  the  Court  ot  Kiiijr's-bench 
*<  (in  the  Imposition  of  Fines  on  Oftendcns  of 
**  late  years)  liath  acted  arbitrarily,  ilU'g:ally, 
**  and  partially,  favourinsr  papistx,  'and  persona 
**  popiahly  affected,  and  excessively  oppressinf^ 
^'  Ids  majesty's  Protestant  subjects." 

AndUiis  Conunittee  being  in1i>mied,  Tliat 
several  of  his  majesty's  subjects  had  been  com- 
mitted tor  crimi-H  tmilable  by  law,  although 
then  then  tendered  sufficient  sureties,  which 
were  refused,  only  to  put  them  to  vexation  and 
charse,  proceeded  to  enquire  into  the  same,  ami 
found  that  not  only  the  fore- mentioned  Henry 
Carr  had  been  so  refused  the  common  right  of 
a  sulject,  as  is  aljove-said  ;  but  that  Geor^^ 
Broome,  being  a  constable  last  year  in  Lomkm^ 
and  committing  some  of  the  lonl  chief-justicft 
Scroges's  servants,  for  ^eat  disonlers,  accord- 
ii^  to  uis  duty,  he  was  m  a  few  days  arrested 
by  a  tipstaff,  without  any  London  constable, 
and  cairried  before  the  said  chief-justice^  by  hia 
warrant,  to  answer  for  the  said  committing  ^ 
those  persons  abovesaid  ;  but  being  there,  was. 
accused  of  having  spoken  irreverently  of  the 
sakl  chief-justice,  and  an  affidavit  read  to  hnn 
to  that  purpose  ;  and  was  falsely  (as  the  ssid- 
Geoige  Broome  affirms)  sworn  against,  by 
two  penona  that  use  to  be  conunon  l»il  in  that 
court,  and  of  very  ill  reputation.  Upon  which 
he  was  committed  to  tlie  Ring*s-bendi,  though 
he  then  tendered  two  able  dtizens  and  com* 
nMm-oouncil-mcn  of  London  to  be  his  bail : 
and  he  was  finroed  to  brincr  his  Habeas  Corpus, 
to  his  great  charge,  before  he  came  out ;  wncnt 
the  marshal,  Mr.  C-ooling,  exacted  5/.  <Mf  hnn, 
of  which  he  coraplainetl  to  the  chief-justice  ; 
but  had  no  other  answer,  but  he  raHjrht  ask  hw 
remedy  at  law.  But  the  said  marshal  fearing 
he  should  be  questionnt,  restored  him  two  gm- 
neasof  it. 

And  further,  this  committee  was  inftirmed  by 
Francis  l^kh,  bookseller,  that  Aout  Michael* 
mas  was  twelve- month  he  was  brought  before 
the  said  ehief-justice,  by  his  warrant,  and 
charged  by  the  messenger,  Robert  Stephens, 
Tliat  he  had  seen  some  plrceh  of  a  pamphlet^ 
called  *  Observations  on  sir  Geoi^  Wakemaa'a 
« IVial,'  in  his  shop  :  upon  which  the  chief- 
justice  told  him,  he  would  make  him  an  ex- 
ample, use  him  like  a  boor  in  Fiance,  and  pila 
him  and  all  the  booksellers  and  printers  up  m 
prison  like  ftggvti :  and  so  oommitled  bun  to 


igi]         STATE  TRIALS,  33Ch4RLes1L  iSSQ.—PncuiimgM  mgmkui         [ 

the  Kiotf -ft-bencfa,  weam^  wad  curou^  at  him  tkm,  wbirfa  «bs  a;7iiaBt  their  firiiion  nui 
ID  gn^  fury.  Acid  ubeo  be  teoilered  thn^  i  ami  tbeo  adding  to  tfaia  purpose ;  *  Zwn^ 
mithaoA  iritJzem  of  LmmIod  for  bis  bail.  ^-  '  '  ki  up  hi»  frnaticuai,  and  Calvin  built  oa 
ledspnff,  itDpwmznent  id  his  cimiinstaiicfs  •  *  blesM  fotindatioo ;  aiid,  to  speak  trott 
would  be  bit  uiter  ruin  ;  the  chief-justke  re-  j  *  his  discipio  are  g?awiied  with  anch  a  rii 
|^«d,  die  citizeott  looked  Uke  suficient  per-  *  De»  of  Hiirit,  thai  it  aaiich  cwMiieMaa  m 
v/ns,  but  be  would  take  no  hail :  and  so  be  '  tratrs  to  keep  a  strait  hand  over  then ; 
wzi  Ibreed  to  couie  oui  b}'  a  Habeas  Coq>nft,     '  now  tber  are  resdeaBy  aaoring  oa  with  II 


«ad  was  afterwards  infunn^nt  against  lor  tiie  '.  *  and  notbini^  will  senre  them  botn  pariiu 


same  matter,  to  his  j^rcat  chaise  and  vexation. 
And  a  while  aft«r  Francis  (the  son  of  the  said 
Francis  8initb)  was  comiiiittf^  by  the  iai«i 
Chief-justicCf  and  hail  refused,  fur  sellini^  a 
fKtro|»ldet,  calhil  **  A  Nen  -  Year  *s  Gift  tor  the 
said  Chief-jiiitiee,''  to  a  oofee-houflc ;  and  he 


'  For  my  part,  I  know  bd  representative  of 

*  nation  but  the  long;  aD  power  ocnten  in  I 

*  It  is  true,  he  does  intmst  it  with  his  min 
'  but  he  is  the  sole  representative ;   and  iHI 

*  he  ha«  uisdora  enough  to  intrust  it  no  i 

*  in  these  men,  who  UaTp  given  ns  aoeh 


dectntl  to  ihL'ni  h"*  noukl  take  no  bail,  for  he  j  *  examples  of  their  wisaiom  and  laithfbhi 
wouki  ruin  thetn  ;iH.  And  tins  Committee  takiiuf  the  said  UMttcr 

Ar.<!  fiQthir  ii  appeare*!  to  thi«  oomnuttee,  '  their  consideratifin,  came  to  thia  KesohitMi 
tiiai  tlic  «aid  cuief-justice  (about  October  was  {  **  Resolreil,  Src  That  the  said  expieaMW 
twelit-momh)  oommittcd  in  like  nuinncr  Jane  t  "  the  cliai«^  (jfivcn  bv  the  said  baran  Wa 
CunU,  fthe  having  a  hu^Mnd  and  chihhcn,  |  '*  were  a  scandal  to  the  RefoiMition,  in  d 
ferselKng  a  book,  csUcd  "  A  Satire  against  ;  ^'  gation  of  the  ri^ts  and  privilq^es  of  pn 
Injustice  ;'*  which  his  lonLsliip  called  a  libd  \  "  ments  and  tendmq  to  raise  dkoord  betf 
s^ptinst  him  :  :.:id  her  friends  trudciiiig  buffi-  **  his  iuajc.>aT  and  his  suhfects." 
cient  b:ii : ,  rLii\*  '^e  ir::^  him  to  have  merev  upon  And  this  Committee  benig  inlbrmed  bv  • 
her  poverty  and  «-nndirion,  he  swore  hy  the  ral  printen  and  booksoUers,  of  great  trouble 
mme  of  Gedslie  sboold  go  to  prinn,  ami  he  vexation  giren  them  mtjustlj-,  hv  one  Kq 
wouU  shew  her  no  more  mercy,  ^an  they     Stephens  called  a  messcnj^eroirdie  press; 


could  expert  from  a  wolf  that  came  to  d^-voiir 
them ;  and  she  might  brin|Q^  ber  Habeas  Cor- 
pus, and  oome  out  so  ;  which  she  was  forced 
to  do ;  and  after  infonned  against  and  proae- 
cnted,  to  ber  utter  ruin,  four  or  five  terms  after. 
In  like  manner  it  appeared  to  this  committee, 
that  alKmt  tliat  time  also,  Edward  Berri',  sta- 
tioner, of  Gray  V  Inn,  was  committed  *  by  the 
said  chief-ju5tice,  being  accused  of  sdling 
"  Tlic  Observations  on  sir  George  Wakemin's 
Trial  :**  and  thougli  he  tendered  1 ,000/.  bail,  yet 
the  chief-justice  said,  He  would  take  no  bail, 
he  should  go  to  prison,  and  cooie  out  according 
to  law.  And  after  he,  with  mueh  trouble  and 
charge,  got  out  b^*  a  Habeas  Corpus  he  was 
forced  by  himself,  or  his  attorney,  to  attend  fi\  e 
terms  before  be  oould  be  discharged,  though  no 
information  was  exhiliitnl  against  him  in  all 


that  time.     In  consideration  \vhereof,  and  of    "  be  brought  to  their  piinisliment : — ^Tbese 
others  of  the  like  nature  (too  tedious  here  to  re-     *  to  will  and  require  you,  and  in  his  in\m 

*  name  to  change  and*  comiuand3'ou,  an  del 
*■  of  you,  upuu  sight  hereof,  to  be  aiding 
<  as8istin«r  to  K«)bert  Steiiliens.  messenira 


late),  this  committee  came  to  this  resolution : 

**  Resolved,  That  it  is  the  opinion  of  this 
'*  committee,  that  the  refusing  suifiritiut  bail  in 
<<  these  cases,  wherein  the  persons  committed 
**  were  bailable  bv  law,  was  iUej^,  and  a  high 
"  breach  of  the  liberty'  of  the  subject." 

And  this  Committee  being  informed  of  an  ex- 
traordinary kind  of  a  charge  given  at  tlie  last 
assixes  at  Xing^n,  m  the  county  of  Surry,  by 
Mr,  Baron  Weston,  and  proceeiling  to  e.\  • 
amine  several  persons  tlien  and  there  present,  it 
was  made  ypear  to  this  Comuiittee,  by  the 
tei^niony  of  John  Cole,  Ilic^hard  Mayo,  and 
John  Pierce,  gentlemen,  and  others,  soine  of 
whom  put  down  the  said  baron's  words  in  writ- 
ing, iuunediately,  tliat  pan  of  the  said  charge 

^  ^  2^^?*  I  he  iuveigiied  vm-  much 
■gaoisl  rarri,  Luther,  Calvin,  and  ZuingUus, 
tfatm  as  authora  of  Uie  Reforioa- 
4 


sai«l  Stephens  being  exanuncd  fay  this  Comi 
tee,  by  what  authority  he  had  proceeded  m 
nuinuer,  produced  two  wan  ants  under  die  I 
and  seal  of  the  Chief  Justice  Scroggs,  wl 
were  in  h^c  verba  : 
*  Ang/.  u.    Mhereas  there  are  divers  31- 

*  |MJsed  pi-raens,  who  do  daily  print  and  puft 
'  many   wtliuous  and  tioasonable  books 

*  pamphlets,  endeatx>unno-  ;':ieribv  to  disi 

*  the  minds  of  his  majesty's  ^uWjects  to  sedi 
*■  and  rebellion :  and  aL»o  infamous  libds, 
'  fleeting  upon  particular  pef>;ons,  to  the  g 

*  scandal  of  his  majesty *s  govejrumeDt. 

*  snppressinflf  whereof,  his  majesty  hath  la 
*•  issued  out  TiLs  royal  prodaniation :  and  fbi 

*  more  speedy  siiuprpssiug  the  slid  sedit 
<  books,  libels,  and  |)am|ilitet8,  and  to  the 

*  that  the  authors  and  publishers  thereof  i 


Stepliens,  messense 
'  the  press,  in  tiic  seizing  on  all  such  booEs 
'  pamphlets  as  aforesaid,  as  he  shall  be  infoi 

*  ed  or,  in  any  bookseller *s  or  printer*s  diop 
'  warehouses,  or  elsc^vaere,  wnatsocver;  to 
^  end  they  may  be  disposed  as  to  law  shall 

*  pertain.  iUso  if  you  shall  be  informed  of 
^  uuthors,  printers,  or  publishers  of  such  bo 

*  or  pampnlets  as  are  abovc^mentionod,  } 

*  are  to  apprehend  them,  and  have  them  hd 
<  one  of  Lis  majesty's  justices  of  the  peace 
'  be  proceeded  against  according  to  law.  Da 

*  Nov.  29,  1679.  '  W,  Sc&occ 
*  TuR.  Stepliens,  messenger  of  the  press, 

*  and  to  all  mayors,  sherins,  bailiffs,  con^ 
'  stables,  and  all  other  oncers  and  minis* 

*  teis  whom  these  may  concern.' 


rE TRIALS,  32  Charles  II.  \6no.^LnrdChiffJv9fice  Scroggs.    [  194/ 


Wbereas  the  kind's  majesty  bath 
out  bis  Proclamation  tor  suth 
printing  and  publishing  unli- 
boolu,  and  pamphlets  ci'  news  : 
Ing  which,  there  are  divers  per- 
duly  print  and  publish  such  unli- 
and  pamphlets : 

therefore  to  will  and  require  you, 
ijesty's  name  to  char^  and  com- 
mri  erery  of' you,  from  time  to 
ill  times,  so  often  as  you  shall  lie 
rjuired,  to  be  aiiling  and  assisting 
>(ihens,  messenger  of  the  press, 
^  of  all  such  iMMiks  and  pamph- 
snid,  as  lie  shall  be  infonneil  of, 
!Uer*s  shop,  or  printer's  shop,  or 
or  ehewhere  wnatsoevor,  to  the 
y  be  disposed  of  as  to  law  shall 
ikewise,  if  yon  Khali  be  in^brinetl 
s,  printers  or  publishers  of  such 
mphlets,  yoM  are  to  apprehend 
we  them  liefore  me,  or  one  of  lii«t 
tii-es  of  tlie  peace,  to  bo  j>rocced- 
to  law  shall  appt^rtaiu.  DaUMl 
r  of  May,  A.  o.  1680.* 

*  W.  ScROGGS.' 

>rB,  sheriffs,  baiUifs,  con- 
d  idl  other  officers  and  rai- 
om  these  may  concern. 
Sn^bens,  messenger  of 

whereof  this  Comniittee  came  to 
B : 

That  it  is  the  opinion  of  this 
that  the  said  warrants  are  arbi- 
egal." 

uunittee  being  informed  of  cer- 
B  discourses,  said  to  be  uttered  in 
ly  the  lord  chief  iustice  feiiToggs, 
examine  sir  Robert  Atkins,  late 
does  of  the  Common  Pleas,  con- 
me ;  by  whom  it  a|ii>ears,  That 
dinner  at  tlie  Old  Bailey,  in  the 
air  Robert  (Jlayton,  who  was 
the  said  chief  justice  took  occa- 
;  veiy  much  against  petitioning, 
I  as  resembling  41,  as  ia<*tious  and 
cKon,  or  to  that  effect ;  to  which 
obert  Atkins  made  no  reply,  sus- 
iled  for  some  advantage  over  him. 
'  jmtioe  continuing  and  pressing 
aid  discourse,  he  began  to  justify 
the  right  of  the  people ;  espe- 
■tting  of  a  |iarliament,  which  the 
if  it  he  done  with  modesty  and 
n  vhich  the  chief  justice  lell  into 
nnd  tliere  is  some  reason  to 
after  he  mailc  an  ill  repre- 
tlie  aakl  sir  Koliert  had  then 
ierty.  And  tins  Committee 
^thilthe  sakl  sir  Uolicrt 
■k  with  the  said  chief  jus- 
«w  was  twelvemonth,  at 
4.  Mr.  Price,  and  Mr. 
)  the  chief  ius- 
AMr.  Badloe; 


taking  off  the  crcnlit  of  his  eviden<:e,  nnd  al- 
ledging  he  had  over-shot  himself  in  it,  or  to 
that  effect,  very  much  to  the  disparagement  of 
his  testimony.  And  the  said  sir  Robert  de- 
fending Mr.*  Bedloe's  evidence  and  ci^edit,  bo 
grew  extreme  angry  and  loud  :  paying  to  this 
effect,  *  That  he  veiily  believed  Laiighorn  die<l 
'  innocently.'  To  ^v'liich  the  said  sir  Robert 
renliinl,  He  wondered  how  he  could  think  so, 
who  lia<t  condemned  him  himself,  and  had  not 
moved  the  king  for  a  re])rieve  for  him.  All 
which  matters  of  discourse,  this  CommKteo 
humbly  submit  to  the  wisdom  and  considera- 
tion of  this  House,  without  taking  upon  them 
to  give  any  ojiinion  therein. 

And  this  Committee  proceedcil  further  to  en- 
quire into  some  passages  that  happenetl  at  I>eiit 
assizes  last  for  the  county  of  {Somerset,  at  th« 
trial  of  Thomas  Dare,  eent.  there,  upon  an  In- 
dictment for  saying  falsly  and  seditiously,  *  That 
Mlie  suhjeirts  had  bnt*two  means  to  redress 
'  their  grievances,  one  by  |)eiilioning,  the  other 
'  by  rebellion :'  and  fouiid,  that  though  by  his 
other  dibt^urse,  when  he  said  so,  that  it  ap- 
{leared  plaiidy  he  had  no  rel)clhoiis  intent  m 
that  he  said,  «.  Tlicn  14od  forbid  tliere  should  h% 

*  a  reliellion,  he  would  be  the  tirst  man  to  draw 

*  thi^  sword  against  a  rebel  ;*  yet  he  was  pro* 
sei^uted  with  great  violence :  and  having  plead- 
ed. Not  (juilty,  he  moved  Mr.  Justice  Jones, 
(who  then  sat  Judge  there)  that  he  might  try  it 
at  the  next  assizes  ;  for  that  Mr.  Searle  (who 
was  by  at  the  speaking  of  the  wonls,  and  a  ma- 
teriid  witness  for  his  defence)  was  not  then  to 
be  had,  and  an  ailidavit  to  that  iiurpose  was 
made  and  received  ;  but  the  said  J  ustice  Joney 
told  him,  that  was  a  favour  of  the  court  only, 
and  he  had  not  desen'ed  any  favour,  and  so 
forced  him  to  try  it  presently.  But  the  jury, 
appearing  to  be  an  extraonlinary  one,  provided 
on  purpose,  being  all  of  persons  that  had  highly 
op|Mised  petitioning  for  tlie  sitting  of  this  parlia- 
ment, he  was  ad\  ised  to  withdraw  his  plea  ; 
and  the  said  Justice  Jones  encouraging  lum  so 
to  do,  he  cotifest  the  words,  denying  any  evil  in- 
tuiitifm,  and  gave  the  said  Justice  an  account 
in  writing,  of  the  truth  of  the  whole  matter, 
and  made  a  submission  in  court,  as  he  was  di- 
rected by  the  said  Justice,  who  promiseil  to  re- 
commend him  to  Ids  majesty  ;  but  imposed  a 
fine  of  500/.  on  him,  and  to  be  boimd  to  giiod 
beliaviour  for  thn:e  years :  declaring  also,  that 
he  was  turned  out  from  being  a  common -coun- 
sellor of  the  corporation  of  launton,  in  the  said 
county,  on  pretence  of  a  clause  in  tlieir  charter, 
giving  such  a  ptiwer  to  a  judge  of  assize.  And 
the  said  Thomas  Dai-u  remains  yet  in  prison  for 
the  Kai<l  Hne ;  in  which  matter  of  the  trial  a- 
foresaid,  tliis  committee  desireth  to  refer  itself 
to  tlie  judgment  of  this  Hoiun^ 

2V/«  Resolutions  of  the   lloute  of  Commoni 
upon  the  said  ]i':port. 


the 


"  1.  Tliat  it  is  the  opinion  of  this  House,  that 
.„  ?  discharging;  i)f  the  1  j  i"»  nd  J  urj'  of  tin:  hun- 
dred of  OsBulston,  inthecountv  of  Mid.llesex, 
by  the  court  of  King's  Bench,  m  Trinity  ter« 


ipo]         STATE  TRIALS,  33  Charles  II.  leso.-^ Proreediugs  agami 

of  the  said  court  «ft*  Kiwr**  Bench,  b«  h 


ed  upon  the  suid  Report,  and  ResolutKr 
House  thereupon. 


Ust.  WtWe  iIto  last  tlay  of  the  Umi :  and  before 
the\  hsiil tinishcd theirpreseiituirnfs.il as arbitra- 
rv  and  iUesfat,  destructiTeto  public  justice,  a  ma- 
iiift'si  1  it ilat it m  of  the  oaths  ot'  tlie  j udsTcs  of  that 
ciniri«  aiul  a  means  to  subvert  the  fundamen-  I  mas  Jones,  uho  had  merited  io  muci 
lal  )ai«  >  of  this  kiugxlom,  and  to  introduce  po-  j  Coniish  his  trial,  and  in  the  West : 
pen .  I  Thomas  bogierled  at  tiiis,  and  tdd  the  1 

i.  '*  That  it  Is  the  opinion  of  this  House.     cooM  not  do  it :  to  which  the  km^  ansii 


Ihat  ih«^  nde  made  by  the  court  of  Kin|(*s  '  would  hare  twelve  judges  of  his  opinion 
Itenoh.  in  Trinity  tenu  la.<t,  opiiiist  printing  of  a  |  Thomas  replied,  be  might  have  twebej 
bcH^k,  ca!lc*d.  the  Weekly  l^i^-ket  of  Advice  from  |  his  opinion,  but  woukl' scarce  find  tw< 
Hume.  IS  Uix-^l  and  arbitmry  -,  ilurfby  usurp-  |  vers.  The  truth  of  this  I  have  only  fro 
in^r  to  themselves  kHrislativV  p«>wer. '  to  the  ■  {>ut  I  am  mre  the  kinc-'s  practice'  in  n 
p^at  iii<c\mr24^MmM)t  of  i\w  Fn»ti.*stanLs  and  thejudges,  it  hereof  all  (except  my  Lo 
tor  ihe  tountenam  inir  of  i)«i|)ct\  .  Rartm  Atkins,  and  Justice  Powel)  wen 

^.  '*  i'h;it  it  i^tlu^  opii\M:t  ff'this  llou5kMhat  pack  as  nc-vpr  before  sat  in  'Westminsl 
the  o  u.t  ».f  Ki  «■>  IV::ch.  in  the  inv^n^iiion  of  •  gave  credit  lo  it. 
tines  tu)  ».:re:idi*Ts  if  bi*  vtars,  hav«  a^ttd  ar-  i  Bi:t  if  the  l^irrl  Chief  Justice  Th 
b* (i\ . r: .  ■. .  t 'Ji>:^ '.1y  a ' j ;i  p;:r4 * i!  1  \ .  fji i  «m: rir :r  pa-  raki: . £^  a  bnhe  of  1  \.»jl.  was  adjudged  to  1 
|-.>t*.  .;.  .:  |-*r«;>a^  j»  ['  >h.U  a«*».\"i«M.  a;:'i  cXiv^-  ■.  c\,  ainl  siJ  hUb:id->  and  goods  t^rfeitec 
sii  t  ._v  j»,ip .x  s  ? i :i^-  his  -j . 4 V  >t\  s  1  i>.  :i  -> :  i* .!  > ..  -•  -  ,  tx  i;: ;;  ■  -t  t d^»  ani  the  Sd.  because  tb 
jecis  \  miii-h  ^«  .n  him  lay  he  bad  broken  tb 

4.  •■  Tt  ."it  '.I   is  ii.;  rpir,  *'::   •*!  ti.  >   Ho-!?-.\     i^th  mii?e  »:i.to  ihi.  po.»ple.  which  thel 
thii  the  rii'asl:^;  si:??"^  ■<.:*;  h.v;!  yi  li.tst  «.d>e>,     iami-u-l  him  Haiial ;  and  it  Justice 
wh«*r>riu  the  ivpior.s  l  ;v.m*!Tvl  '»«:«   ^j-r.*!'!  '  »cs  iiAii^tti- drawn  ard  quanend,  fc 
bv  liw,  tta.<  L'tYAl.  a:id  a  ::■;;!:  "^.-va^L  i.-f  liit  [  h--i>:i:vu!t:  th^i  the  king  might  act 
libmtKs  Mihc  su*>hx'r.  \j  *.'  ^  i^-  i*'i  p:k.-iiam€nt ;    and  if  Bk 

5.  "  Tlu:  it  IS  5 be  *  ;»ir.joTi  of  ihi*  !!oi*.K.  '■  k  :  .i'*».-;u  n\.  Lsi.  tLe  under-sherifl* 
that  the  s.i'.i?  «■  x^^resM  r. >  in  tbc  ilvi: u"'  «".» « n  ■  *".-.  >•-  v.  - -■'*  n » e  riK»iv  ot  ^jsahiy.  were  h 
by  ih«  "<-^J  .sirxvi  \>  .^-  '.  \»c:v  s  s.Ji.'C:^  u  iL  Ui^  ••!  H -ary  the  ith.  i'.irbuta!<! 
t  be  TY KMT.iaL'.Mi :  .:. . i  t«  c  '. :~  ^  tc»  7ii.<  d . AN  :  *i  T.  *:  -.  - 1 ' s  j . :c J-.  lViH  :  »  hat  tiie n  'J 
heiwix:-.  *»'.i>  :uA;r<y  a;'.  ^  sv.\.-.».  :.:.d  i  •  '  .ii:eA.->  '.-s^rst.  v'Jxh.  ir.d'ie  bargains 
t':^e  >.:*^».-M  s  vT  :hi  ij.  :;-;  i^'i^c;.;::  r.  •:  ^-V  **^  -:^. -1-i- j. :  ■  •.  ik -.he  kiiiir* 
tv^r-.Tii':  .:*,  ^  i  «.:"  ihc  ^  u-zjiitL".  01  th^^  bi-  :.  li.  ;  :.»-:  j^-  :>-.■►, ir-i  cT.iit-d  tL 
S".- ^-.i  :-.  ' ■  1 . . . .-. • :  ■■  <^' : : »-,  tr .-  , i-«* >.  i-u--^  t j' « 

r    ••  V-.v:  ::  >i :-  .-  ..7/     -  c''  :hi>  H: ■.!>*.     ?^:    -    .  ->^  "        : ».  "Tv.-y  ?'»  th-ai 
tbvi:  ".V,  sl.^:*i.-::i:. :>!-<■" :..  ^:-^<-y  i^o-I-iC-^.  '       li-  r «   >;    .   -  .r  J '..;.■>-.  ttU* 

r  1^%.-  ^"«"-  '•    t  -   •-.  T.  t    ■'e.  and  41 

'  n>  >■-,»'      -   y     :'^-:-i  ia  (iLiicuh 

Cb.c:*  J UKxe  ■>!* IT-;  cv.^r;  :i  K  .■^s  B«--x4i.  N:  Arr.  ■  *  :    r  .    r. ::  ^  -    -  a  i.€  •. .  i^^  ch*fc 

im^a^'^e^i ^^0:1  tb«  Si**!  K^j^vs,  ir»i itA  R«^--  k. :^  Ji  .   >  :.  ...>-.  .ajvv:=s  :-r:»»nc-h 

lKia»»  et  sbf  U^^ta^  i!kJK ■. -.5  •.  c.  ■  .> -^^  .>  -  -   ;, . -•  •      ^t. -=r :  ^  .'-:r3jy  so 

*.  -  'nai  ^  IVmsj^  J\>c>cs<*  .xh:  ^ :  ;&* ;  .;>.  t-V.v.x .  ■  i>  :  *:  .  _lj?s8?  tbey  wi^uU  I 

_  ^  k:r.j  >    J.1.1  :■■       >   inir-^*,  U^jx^  sAmoI 

^Mth'sacoMSoi  \><  "iNi;  "Pi.xr  it*  J*.y:o .::  '  r.2s  >-:  ;rw 


J 


1B>J  heelcueii  frwt  |«nasi£  «  :ie  ciiii^  .■.■"     Y:!-*  7r,.l  x  ^  -m:  cS-  "c^-  .-i» 
Fcnilev.  i^.  l^anc  aad C^i^MUu  ^  r  ;c\n:.     :  .-:  .^  •  c  *  -  '•*  i*t^_=.*aif>-ku:: :  the; 

l^^***  >*  *»  «»i*  Cte  kc^/xfdftv 

^  Anna  u«> 


aeotf 


viactv: 

^i:-^     ■"  i 

■*;  A." 

■'L-  ._:;J    10-  y>\\ 

*•  ■  an.- 

-Ti'.     r^. 

fcj      *    • 

V  >' :_    i^^T    w> 

^•"^  ;  '.IK-  ■  .cu:i*» 

:>^  Is 

>      r--*»     <  -J^^W 

fT-;.   '.'it: 

-Jtf 

ft.  .Ti;    •■     -j»  pn 
.1-    !  S2^iaSm 

;•  ■* 

.>      -  :atr-j  JK!€* 

).>  i;*. 

>«».ii". 

'•■^   ■ 

i'l  -     .If  krf. 

>»a*  J^ 

!•-■    ^ti-. 

'   Y>iir' 

-^    1«;  wjsf  ^ud  a 

197]    STATE  TRIALS.  32  Charles  II.  l6S0.— Loi-rf  Chief  Justice  Scroggs.    [  198 


S.  "  That  lir  Richani  Weston,*  one  of  the 
bwans  of' the  court  of  Exchequer,  be  impeached 
■poo  the  aid  Report,  and  HesolutionB  of  the 
Hook  tbetvupon. 

Ordered,  *'  That  the  Committee  appointetl 
H  prepare  aa  impeachment  against  sir  Francis 
Niitkv  Chief  Justice  of  the  court  of  Common* 
EllMfe  do  prepare  fmpeachments  against  the 
■ii  m  Wyham  Scro^^,  sir  Thomas  Jones, 
ml  m  Kchird  Weston,  upon  the  said  Report 
lidBflBoliitiooa." 

■Orfewd.  "  That  the  said  Report,  and  sc- 

BoolutioBS  of  this  Aonse  thereupon,  he 

and  that  Mr.  Speaker  take  care  in  the 

■■lii|r  thereof  apart  froni  tliis  day's  other 

fr  Ricba^  Cortiett  reiwHs  from  the  Com- 
itee  appointed  to  prepare  an  Impeachment 
MiMi  sr  Wiilia^ii  Scrojgg^  knt.  Chief  Justice 
dweouirt  of  Kin^^s-Bench,  upon  tiie  former 
of  the  said  Committee,  and  the  Reso- 
i  of  the  House  thereupon.  That  the  Com- 
hmriuff  taken  the  matters  to  them  re- 
mto  consideration,  had  agreed  upon  se- 
Arddes  of  Impeachment  ajj^iust  the  said 
■K  WQfiam  8crof{gn :  which  he  read  in  his 
fhtc^  and  aftertiards  delivered  them  in  at 
4idirk'a  table:  where  the  same  being  read, 

Wlf'LES  or  IMPEACHMENT  against 
ffr  WM.  HCROGG8,knt.  Chief  Justice 
«f  the  court  of  King's- Bench,  by  the  Com- 
■ooa,  in  this  present  Parliament  assembled, 
in  dicirown  name,  and  in  the  name  of  all 
the  Coaairaons  of  Enghmd,  of  High-Trea- 
Ha,  and  other  great  Crimes  and  Misde- 

he  the  said  William  Scroffgs,  then 

r-Jostice  of  the  court  of  King's- 

traiterously  and  wickedly  endea- 


VpHlf  iobrert  the  fimdamental  laws,  and 
il|§p^pHdied  rel^;ion  and  government  of  this 


kingdom  of  England  ;  and,  irnnead  thereof,  to 
introdure  popery,  and  arbitrary  and  tyrannical 
government  against  law  ;  which  he*  has  de- 
clared by  divers  traiterous  and  wicked  words, 
opinions,  judgments,  practices,  and  actions. 

II.  That  he  the  said  sir  William  Scroggs,  id 
Trinity  Term  last,  being  then  Chiei- Justice  of 
the  said  court ;  and  having  taken  an  oath  duly 
to  administer  justice  acconling  to  the  laws  and 
statutes  of  this  realm ;  in  pursuance  of  his  said 
traiterous  pur^voses,  did,  together  with  tlie  rest 
of  the  justices  of  the  same  court,  several  days 
before  the  end  of  the  said  term,  in  an  arbitrary 
manner,  discharge  the  Grand -Jury,  whicn 
then  siTverl  ibr  tlie  hundred  of  Oswaldston,  in 
the  county  of  Middlesex,  bei'ore  they  had  made 
their  j)ri'sentinents,  or  hufl  found  several  bills 
of  indictment,  which  were  then  belore  tht-m  : 
whereof  the  said  sir  W  illiani  Scroggs  was  then 
fully  iiitbnned  ;  and  that  the  same  would  be 
tendered  to  the  court  ii(M>n  the  last  day  of  the 
said  tfTm  ;  which  day  then  was,  tmi  by  the 
known  course  of  the*sai<l  court,  liath  always 
heretofore  been  given  unto  the  said  jury  lor 
the  delivering  in  of  their  bills  and  present- 
ments: by  which  sudden  and  Ulegal  discharge 
of  the  said  jury,  the  course  of  jubticre  was 
stopped  maliciouNiy  and  designedly  ;  the  inre- 
sentinents  of  many  Papists,  and  other  oifendcrst 
were  obstructed ;  and,  in  particular,  a  bill  of 
indictment  against  James  duke  of  York,  for 
absenting  himself  from  church,  which  mis  then 
before  them,  was  prevented  from  being  pro- 
ceeded upon. 

in.  That,  whereas  one  Henry  Carr  had^ 


.  ■  >  • 


he  was  in  his  service,  but  cbn- 

4«t,his  majesty  should  expect  such  a 

of  the  law  from  him,  as  he  could 

give ;  and  that  none  but  indigent, 

ambitious  men  would  give  their 

I  he  expected  ;   and  that  to  this 

■jjotf  made  answer.   It  was  necessary 

ihoald  be  all  of  one  miiid." 

•kii  1  Burnet's  Own   Times,  G69 ; 

ODQ,  706 }  Echard,  1077  ;  8  Kennett, 

Md ;  2  Rapm,  754,  755,  ed.  of  1743  ; 

"  ,  920. 

Bogev  North's  character  of  him,  an/f, 

Bsnm  Weston  seems  to  have  been  a 

^(■ach  boldiiess;  for,  not^ithbtanding 

against  him,  he  afterwards 

be  power  ^T  the  House  by  liberating, 

VBsKss  Corpus,  Sheridan,   who  was 

M7  soder  a  commitment  of  the  House. 

Mthe  ivht  of  the  Lords  to  tiy  a  Com- 

'i|n  in  Impeachment  of  High  Treason, 

Mcii  the  Cmc  of  FItBbarris,  a.  d.  1681, 


wherein  the  superstitions  and  cheats  ofthe 
church  of  Rome,  were  from  time  to  time  ex- 
posed ;  he  the  said  sir  WiUisun  Scroggs,  then 
Chief  Justice  of  the  court  of  King's  Bench, 
together  with  the  other  jud^^  ot  the  said 
c;ourt,  before  any  le<^l  conviction  of  the  said 
Carr  of  any  crime,  did  ui  the  some  Trinity  Term, 
in  a  most  illc&fal  .-md  arliitrary  manner,  make, 
and  cause  to  be  entercil,  a  certain  rule  of  that 
court  against  the  printing  of  the  said  book,  tJt 
Atfc  verba  ; 

*  Die  Mercurii  proxhna  post  tres  Septima- 

*  nas  Sanctffi  Trinitatis,  Anno  32  Car.  II.  Rt>gis. 
'  Ordinatum  est  quod  IJbcr  intitulat' '  The 
'  *  Weekly  Pacquet  of  Advice  irom  Rome,  or, 
' '  the  History  (»f  Popery,'  non  uHerius  impri- 

*  matur  vel  publicetur  per  aliquam  personam 

*  quamcunque.  Fer  Cur** 

And  did  cause  the  said  Carr,  and  di\'era 
printers  and  other  persons  to  be  served  with  the 
same  ;  which  said  rule  and  other  proceediogs 
were  most  apiwrently  contrary  to  all  justice,  in 
condemning  not  only  what  had  been  written 
without  h^uinff  the  parties,  but  also  all  that 
might  for  the  future  be  written  on  that  sub- 
ject ;  a  manifest  countenancing  of  popery  and 

*  Hceth«  Case,  vol  7,  p.  1111|  ^  this  Co)- 
l€cUw. 


STATE  TRIALS,  52  Charles  II.  l690.—Froceeiing8  MgahiH 


1991 

discoura^pemeiit  of  prote8tants,  an  open  inTasion 
upon  tbe  ri^hiof  the  subject,  and  an  encroach- 
ing  and  aKsinnini;  to  thennselvcs  a  legislative 
power  and  authority. 

IV.  That  he  the  said  sir  William  Scrof]^, 
since  he  was  made  Chief  Justice  of  the  Kin{^*s 
Bench,  hath,  toother  with  the  other  judg^es  of 
the  said  court,  most  notoriously  departed  from  all 
rules  of  justice  and  equality,  in  the  imposition 
of  fines    upon    persons  convicted  of  misde- 
meanors in  the  Kaid  court ;  and  particularly  in 
die  Term  of  Easter  last  past,  did  openly' de- 
clare m  the  said  court,  in  the  case  ot  one  Jes- 
sop,    who  was  convicted  of  puUishin}]^  false 
neivs,  and  was  then  to  be  fined.  That  he  would 
have  re^rd  to  persons  and  their  principles  in 
im]>osin^  of  fines,  and  would  s(4  a  fine  ot  500/. 
on  one  ))ersf>n   for  the    same    offence,  for  the 
which  he  would  not  fine  another  100/.     And 
according-  to  his  said  unjust  and  arbitrary  de- 
claration, he  the  said  sir  William  Scro^n^,  to- 
petlier  with  tlic  said  other  justices,  did  then 
tmiMise  a  tine  of  100/.   ujMtn  the  said  Jessop  ; 
aUhouQ:h  the  said  Jessop  had  before  that  time 
provctTiine  Hewit  to  be  convicted  as  author  of 
the  said  false*  news  ;  and  afterwards,  in  the 
•anie  Term,  did  fine  tlie  said  Hewit  upon  his 
caid  conviction,  only  five  marks  :  Nor  hath  the 
•aid  sir  Willi  iani  S(T(^^,  together  with  ths  other 
judges  of  the  said  court,  had  any  reganl  to  the 
nature  of  theofl^enccs,  or  the  ability  of  the  per- 
sons, ill  the  imiMising  of  fines  ;  but  have  been 
Diaiiili^tly  partial  and  favourable  to  papists,  and 
persoas  alRrted  to,  ami  promoting  the  popish 
interest,  in  this  thnc  of  im mi iimt  danger  from 
them  :  Aiid  at  tlie  same  time  have  most  se- 
verely and  grievously  op]iressed  his  majesty^s 
pn)testant  subjects,  as  uill  appear  upon  view*  of 
the  several  rct'ords  of  fines  set  in  the  said  court. 
By  which  arbitrary,  unjust,  and    partial  pro- 
vetMlings,    nmnv     of    las    majesty^s     liege- 
people  have   IkVu   niiiieil,   and  popery  coun- 
tenanciHl    inider   colour  of  justice ;    and    all 
the  misrhicfs    and    excesses    of  the  court  of 
8tar- Chamber,    by    art    of  {>arliament    sup- 
jiressfil,  have  lieen  again,  in  cUrect  opposition  of 
tlie  said  law,  intHKluceil. 

V.  That  he  the  said  sir  William  Scwggs, 
for  the  fiutluT  ai*complishing  of  his  said  trai- 
tor(»us  and  wicked  purposes,  and  designing  to 
subject  the  ])ersoiis,  as  well  as  the  estates  of 
hi^ majesty's  Uinife  ]>eopie,  to  liLs  lawless  will 
Itiid  pieasure,  hath  freipiently  refused  to  ac- 
cept of  bail,  though  the  same  were  sutficient, 
and  lefifally  tendered  to  hhn  by  many  persons 
nccu.-^'d  before  him  only  of  such  crimes  for 
whirh  by  law  bail  ought  to  have  been  takrn, 
•nd  divcTS  of  the  said  persons  being  only  ac- 
cuw-<l  of  ort'ences  aganist  himself;  dwlaring 
at  the  saiac  time,  that  he  refiise(l  bail,  and 
VOiiiniittcd  them  to  gaol  only  to  put  them  to 
chunr(«  ;  and  using  such  iiirious  threats  as 
were  to  the  tem»r  of  his  majesty's  subjects, 
ond  such  scandalous  expressions  as  wera  a  dis- 
honour to  the  governuifnt,  and  to  thedicuity  of 
his  office.  Antl,  particularly,  that  he  tne  said 
iir  William  Scrc^gs  did,   u  the  year  1679, 


commit  and  detain  in  prison,  in  tudi 
manner,  among  others,  Henry  Carr 
Broome,  Edward  Berry,  Boijainm 
Francis  Smith,  sen.  Francis  •  Smith,  . 
Jane  Curtis,  citizens  of  London :  Wl 
ceeilings  of  the  said  nr  William  Scro^ 
high  breach  of  the  liberty  of  the  aab] 
tructive  to  the  fundamental  laws  of  t£ 
c<mtniry  to  the  Petition  of  Rifflity  a 
statutes  ;  and  do  manifestly  tend,  to  1 
ducing  of  arbitrary  powe^. 

VI.  lliat  he  the  said  sir  WUfiam 
in  further  oppression  of  Ids  nuuest 
people,  hath,  since  his  being  made  d 
tice  of  the  said  court  of  King's-bench,  i 
trary  manner,  granted  divers  general  i 
for  attaching  the  persons  and  seizing  1 
of  his  majesty's  subjects,  not  named 
cribed  {NuticulaTly  in  the  said  warn 
means  whereof,  many  of  his  m^es 
jects  have  been  vexed,  their  houses  en 
and  they  themselves  grievously  q 
contraryto  law. 

VII.' Whereas  there  hath  been  a  I 
damnable  plot  contrived  and  carried 
papists,  for  the  murdering  the  king,  th 
sion  of  the  laws  and  government  of  1 
dom,  and  for  the  destruction  of  the  i 
religion  in  tlie  same  ;  all  which  tl 
WiUiam  Scroffgs  well  knew,  havin| 
not  only  tried,  out  given  judgment  b{ 
veral  ot  the  offenders  :  Nevertheless, 
sir  William  Scro{(gs  did,  at  divers  t 
places,  as  well  sitting  in  court,  as  < 
oi)euly  defame  and  scandalize  seve 
witnesses,  who  had  proved  the  sail 
against  divers  of  the  conspirators, 
given  evidence  against  divers  othei 
who  were  then  untried,  and  did  end 
disparage  their  evidence,  and  take 
credit ;  whereby,  as  much  as  in  hi 
did  traitorously  and  wickedly  sup 
stifle  the  discovery  of  the  said  Fopisn 
encourage  the  conspirators  to  proce< 
same,  to  the  great  and  apparent  danj 
majesty's  sacred  life,  and  of  the  well 
ed  government,  and  religion  of  this 
England. 

VIII.  Whereas  the  sidd  sir  Williair 
being  advanced  to  be  Chief  Justii 
Court  of  King's  Bench,  ought,  h\ 
grave  and  virtuous  conversation,  to  c 
a  good  example  to  the  king's  liege  p 
to  demean  himself  answerable  to  the  < 
so  eminent  a  station ;  yei.  he  the  sait 
liam  8cro^fgS,  on  the  contrary,  by  hi 
and  notorious  excM^ses  and.  debaucl 
his  profieine  and  atlieistical  discoui 
daily  affront  Almighty  God,  <tishonoi 
jesty,  give  conntenance  and  encourai 
all  manner  of  vice  and  wickedness, 
the  highest  scandal  on  the  public  jusi 
kingdom. 

*  8ee  this  Case  referred  to  by  Mr 
in  his-Argument  in  tlie  Case  of  Leadi 
and  others,  a.  o.  1765,  in  thisCollMl 


iOi]    STATE  TRIALS,  32  CnABLts  II.  \C)%0,^LordChiejJatliceScroggi.    [iOST 

>  AU  wUeh  wonls,  opiniuiis  aiid  actions  of  the  I  would  have  tlie  statute  1  Mary  read  which  de« 
tMmrVfi^Baofr^  werchy  him  spoken    dares  *'Tliutiiothin(^Hhall  lie  construed  trea- 
^  dtae,  milnoiisly,  wickedly,  t'alsly,   and  I  so»  but  w)iat  Ls  already  so  by  25  Edw.  3. 
;toilieiiatethehpartiinf  the  kinj^'s  |  otherwise  declared,  but  bv  act  of  parliaim 
■  iuf  maiestv.  and  to  set  a  division  i  i  would  not,  in  behalf  of  tDc  subiecL  make 


imms  mqesty,  and  to  set  a  division 
¥ni  and  them ;  and  to  subvert  the  fun- 
llm,  and  the  establislied  relijerion  and 
t  of  this  kingdom,  and  to  introduce 
/,  udaniiiitrary  and  t^Tannicalgovern- 
,  eMbiiy  to  his  own  knowleds;e,  and  the 
I  bin  of  the  realm  of  England.  And 
Itendk  he  the  aiii  sir  William  Scrog^rg  hath 
■HiiqrMa  his  own  oath,  but  alsf>,  as  far 
■•iihaiiiy,hBth  broken  the  kin|if*s  oath  to 
^jHfie;  whereof  he  the  said  sir  Willliam 
lewtscBiting'  his  majesty  in  so  hieh 
er  iustioe,   bad   the  custody  ;    for 


I: 


No 
iamcnt." 
not,  in  behalf  of  the  subject,  make  noir 
treasons. 

Serieaut  Maynard.  What  Knight  says  of 
S5  Edw.  3.  is  very  true,  but  by  a  distinctiOD .  h 
must  go.  The  question  moved  is,  <<  Whether 
any  punishment  of  any  oflence  can  be  by  the 
name  of  treason  in  paniamcnt  ?"  No  man  can 
deny  it.  But  enormous  ofiSenoea  may  be.  im-- 
peached  by  the  name  of  treason,  notwithstand- 
mg  the  statutes.  .There  was  a  treason  aft  com* 
mon  law  before  the  statute  of  S5  Edw.  3,  and 
the  judges  took  npon  them  to  determine  trea- 
But,  by  that  statute,  the  judgment  of 


son. 
|iebth<ni>r Commons  do  impeach  Aim  the  |  treason,  in  doubtful  cases,  is  expressly  reserted 
mI  dr  WiHiimScro(^,  of  the  Hi)jrh-Tiv«-  |  to  parliament,  amount  other  thmgs.  «« Butbe- 
■  againit  our  sovereign  lord  the  king,  nml  '  cause  men  cannot  think  what  sort  of  men  may 
ieromn  and  dignity,  and  other  the  higli  bcjudges,  they  shall  not  proceed  in  adkmbtfiil 
..jnesand  misdemeanors  aforesaid.  case,  but  shall  acquaint  tne  parliament,  which 

And  the  said'Commons,  by  protestation  sav-    ^  n^t  tA  have  an  act  made,  but  by  judgment  in 
iiytotlMnisefves  the  liberty  of  exhibiting  at    parliament  to  deckre  it  treason."     What  trea- 

..  —  L — A .L .•  son  is,  no  nian  can  define,  nor  describe.   In  that 

statute  it  is  not;  but  treasons  are  enumerated  ;*' 
^'  only  those,  and  those  cases ;  if  any  other 
cases  come  before  them,  they  shall  not  proofed 
upon  them,  but  shall  acquaint  the  pariiament. 
Iran  offence  be  committed,  the  parliament  shall 
judge  whether  it  deserves  the  punishmrait  of 


■^tine  hentfler,  any  other  accusation  or  im- 
It  against  the  said  sir  William  Scroggs 
Mof  n^ying  to  the  answer  that  he  shall 
thereiuito,  and  of  offering  pro<»t8  of  the 
or  of  any  other  impeachments  or 
that  shall  be  by  tliem  exhibited 
him,  as  the  case  shall  (according  to  the 


i  of  parliament)  require ;  do  pra;^  that  •  treason,*'    What  if,  as  in  our  case,  in  interval 


ke  aid  sir  William  Scroggs,  chief  justice  of 
Ihe court  *if  Kinn^s-bench,  may  be  put  to  an- 
Mvt^aB  and  every  the  premises,  and  may 
to  safe  custoily  ;  and  that  such 
exanunations,  trials  and  judg- 
VMij  be  upon  him  had  and  used,  as  is 
to  law  and  justice,  and  the  course  of 


JJpm  lit  above  Articks  the  following  De- 


Sr  Frmweii  Winningian.  It  is  said,  by  May- 
IB^  TlHtft  the  first  article  is  general.  AU  I 
flB  ay  is,  that  it  is  a  substantial  article,  **  To 
■him  the  fundamental  laws  of  Enghind,  and 
teidradooe  popery  and  arl>^trary  government 
bf  vaida,  actions,  and  opinions."  That  article 
UM  a  great  crime,  when  that  learned  5M*rjeant 
«■  ooneemed  in   the  iro]ieachment  ot^  lord 


'  flkJokn  Knighi,  That  article  was  then  of 
Ml  importance.  In  lord  Clarendon's  impeach- 
Mtlora  Strafford's  case  was  cited ;  but  there 
Ikiy  proceeded  by  act  of  parliament,  and  within 
iMiflrtliree  days  passed  it,  with  a  clause  of 
tol  being  hereafler  dravm  into  example.    I 

'*  I  aniomt  John  Wright,  and  Richard 
'ChisweU,  to  nrtnt  these  Articles  of  impeach- 
*MBt  with  the  llesolutran  of  the  House  of 


'Commana  relatiiu^  to  tbe  same,  upon  Wed- 
*aeriaytlieMhof  Jan.  1680.  Perused  by  me 
^Moorinnff  to  the  order  of  the  House  of  Com« 
^noDs;  And  that  no  other  person  meBume  to 
'pnotthoB.    Wi.  WiuMlH,  Speaker.' 


of  parliament,  there  should  be  a  contrivance  to 
destroy  all  the  Lonls  and  Commons ;  is  that 
compiurable  to  the  treason  of  coining  a  shillinjEj^  P 
After  the  statute  S5  Edw.  3.  many  acts  werm 
made  Treasons  on  particular  occasioni,  as  in 
Hen.  6.  Hen.  8.  Edw.  6,  1  Mary,  *«  None 
shall  be  judged  treason,  hut  what  is  so  by  S5 
Edw.  S.  in  reference  to  the  courts  below."  If  an 
act  of  parliament  does  not  name  thekin^,  itdo^s 
not  bind  him.  And  will  any  man  think  that 
the  Lords  will  let  their  throats  lie  open  to  be  out, 
and  not  judge  such  a  conspiracy  to  be  treason  'f 
Whatever  offence  deserves  the  punishment  of  a 
traitor,  the  parliament  may  impeach.  Sec.  and 
the  Lords  judgeacconlingly.  Before  the  sta- 
tute 25  Edw.  3.  a  lord  did  raise  eight  hundred 
men,  &c.  and  it  was  judged  hut  a  riot.  Where 
the  offence  is  a  public  destruction  to  tlie  nation, 
as  all  offences  to  the  king,  as  coining,  &c.  it  is 
treason ;  but  in  a  riot,  the  intuition  and  smpo 
is  on  particular  persons,  and  was  not  jud|^ 
treason  in  the  levying  eight  hundred  men,  6cc. 
To  destroy  the  inclosure  of  particular  persons, 
is  not  treason ;  but  to  go  in  great  numbers  to 
destroy  all  inclosures  in  general,  is  treason ;  fot 
it  differs  in  the  scope  and  intention  of  the  party. 
In  tins  case  before  you,  here  is  a  design  and 
intention  to  destroy  the  nation,  and  our  reli- 
gion, and  i>eople  combine  to  form  companies 
and  raise  arms,  and  intend  to  destroy  the 
Lords  and  Commons.  Think  you,  that  this 
cannot  be  judged  treason  ?  Now  comes  the  sta- 
tute, and  says  "  If  such  an  offence,  as  men  cannot 
define,  should  happen,  the  judges  are  to  acouaint 
Uie  pariiament  n^th  it."    And  an  aet  or  pw- 


S03]         STATE  TRIALS,  3Z  Charles  II.  iSSO.— Proceedings  ngamat 

tiamentdoes  notbind  the  parliament  unless  the  \  the  city  juries,  where  great  fines  hi 
parliament  be  named.  General  words  shall  j  imposed.  There  can  be  no  higher  en 
never  take  away  the  right  of  the  nation,  in  the  Scroggs  is  accused  of;  but  as  to  tl 
judgpment  of  Lords  and  Commons,  The  words    "  traitorous,*'  that  he  did  traitwously  d 

J*  o        r,..-  •  take  h 

Gourtv 
your  titlt 
betrayed  a  castle  in  France,  by  judgment  of   '  ' 

parliament,  without  more  ado,  were  beheaded  ; 


and  tfasit  is  adiiTerent  jwlgment  from  the  law 
in  case  of  tiiedMiB.  What  the  act  25  £dw. 
5b  dbevreserfe  Ac  parliament,  shall  vM.  he  judg- 
ed in-teiy  ittftrior  court:  1  Mary— 'Not  to  define 
hot  enomerate  what  the  judges  shall  judj^  In 
Rich.  S.'sdme  4  judgment  was  dedaredin  par- 
liam«it  against  Tresihan.  This  statute  does 
not  define  before-hand;  but  when  an  offence 
does  (all,  then  to  judsfe  it.  Sometimes  the  par- 
liament have  judged  hanging  and  drawing,  and 
not  quarteruis[  nor  embowellmg,  and  sometimes 
belM?ading  only.  In  treason,  the  forfeiture  is 
to  the  king ;  in  fekmy,  to  the  lord  of  the  manor. 
This  case  we  now  debate  is  no  case  enumera- 
ted in  ?5  Edw.  3.  But  take  that  power  away 
di  dedarin;^  treason  in  parliament,  and  you 
Aiay  have  all  Tour  throats  cut.  (He  spoke  tow, 
notVell  to  be  lieard  J 

Sir  John  Otmny.-  No  doubt  nor  question  bnt 
an  oifipnce  shaD  be  treason,  if  King,  Lords,  and 
Commons  declare  it  so,  since  that  statute  25 
Edw.  9.    This  article  against  Scn»g8  is  very 
micertMn.'    Has  he  broken  the  fundamental 
laws  of  the  nation  P^  Wherein  ?   It  is  a  hard 
thing  for  a  nuin  to  fall  under  the  displeasure  of 
the  House  of  Commons.  No  suliject  is  too  big 
fbr  them.     It  hail  been  k  great  ratisfifection  for 
Serogga  to  have  acknowledged  thexyfTence  here 
aoad  explained  himself;  imd  it  has  been  fre- 
q#ently  done  here  by  Fome  Lordft ; .  as  the  duke 
of  Bu6kini?ham,  and  IiniUrliugtbn,  who  ex- 
plained thtfir  actions,  ^c*  and  upon  satisfaction, 
the  House  has  forborne  to  impeach.  Mr.  Thomp- 
son of' Bristol  was  heard  at  the  committee;  so 
was  sir  John  Davis-  of  Ireland.     Lord  chief 
justice  Keeling  was  beard  in  the  House,  u|K)n 
complaints  against  him,  and  tiie  mattt^  went  no 
farther.     I  wo'rtld  have  Scroggs  sent  for,  to 
know  what  answer  he  can  make  for  himself. 
Let  him  have  th^*  same  justice  others  have  had. 
Sir  Tfiomas   Lee,  I   am  one  of  those   who 
think  that  fay  that  statute  the  parHanient  u  not 
so  bound  up,  that,  v\  hen  sucn  enonnous   of- 
fences are  committed,  by  judgineit  of  parlia- 
ment they  mat  be  mdde  treason,  and  no  doubt 
of  it  for  the  safrty  of  the  government.     But 
now  as  to  this  "parttcular  person,  in  what  degree 
win  the   Comihons  make  their  complaint  to 
expect  jud^cbt  from  the  Lords  ?  As  the -Ar- 
ticles are  fVamed,  you  must  change  your  title  ; 
but  whether  it  is  prudence  to  dress  yoin*  arti  - 
cles  in  these  terms,  is  the  question.     It  was  an 
odd  sort  of  practiec  of  the  juds^es  inthe-  case 
of  sir"  Sanniel  Barnardistoit,  'Sec.  to  construe 
*«  malidou^ly,  to.*'  but  :peppor  and  vinegv- 
saac«-    They  told  the  jury,  "  Finl  you  but  the 
feci,  and  we  shall  lay  the  crime   io   law."     I 
oitai  hafu  taken  this  for  «  great  miscbirf  in 


impeachment.    It  may  be,  the  judge 

to  aggrandize  thenuems.    I  would  • 

whether  to  say  ''  an,  imiveraal  subvi 

the  kiws,*'  to  that  one  particular  actioi 

chajgbg  the  jury.    It  3rou  expect  o 

judgment  from  the  Lords  dian  the 

meaner,  consider  of  it.    The  rest  of  tb 

are  equally  ffuiltym  this  matter;  itwa 

tention  of^  all  the  four  judges.    Call 

lower  name  of  offence  ;    you  cannot 

higher  iudgment  from  the  Lords  than  y 

plain  of.    If  the  parliament  happen  to 

fore  the  matter  be  judged,  the  impel 

remains  upon  record,  and  may  be  pi 

in,   the  next   parUament.    1  nave  st 

matter,  in  every  part,  plainly,  not  in  ft 

Scroggs  ;  that,  if  any  thmfic  should  I 

you  may  not  be  unprepared.    Anotb 

may  fafl  out ;  if  the  ciwrgc  be  trea 

bishops  are  not  to  be  judges  of  it,  and 

may  have  the  better  effect  of  it.     In  t 

of  the  articles  is  tlie  very  evidence,  and 

be  of  great  inconvenience  to  show   the 

the  nature  of  the  crimes  from  the  < 

itself.     If  the  Lonls  happen  to  say, 

but  a  single  act ;  they  may  make  a 

whether  to  commit  him  for  treason  ?  Ai 

ther  the  Lords  be  free  to  make  tliis 

ratory  treason  ?  Let  us  take  care,  not  ti 

Lords  too  of\eB  to  renew  their  orders,  as 

Danby's  case,     if  vou  intend  to  print 

suppose  you  intend  it  not  a  censure  b 

parliament.     If  the  charge  must  be  as 

It,  all  acts,  for  the  future,  of  the  judg' 

be  tliesame  in  wbat  may  follow  herea 

would  be  better  informed  by  learned  : 

tliis  shoidd  fall  out,  to  consicler  what  d\i 

you  will  be  u(ion.     In  Lord  Strafford 

because  such  judgments  should  not 

future  be  given   by  the  judges,  theref 

Commons  proceeded  by  bill  of  attaind 

not  liy  juflginent. 

Sir  Frniicii  Winninfiton.  To  the  first 
"  Wlieilierthe  declaratory  power  of  tre 
in  the  {KirUanient  ?''  Ahhough  doubi 
other  day  bv  Jones,  yet  if  you  consider 
giunents^-  in*  lonl  Duubv's  case,  the  Hoi 
delivered  of  that  didiculty.  Taking  tha 
tor  granted,  if  this  article  be  true,  now 
coine  to  a  mature  debate,  road  the  artic 
by  one.  As  to  the  fairuess  of  the  thinur, 
enormous  crimes  are  committed,  it  is  oi 
to  tukc  caroto  question  them. 

Sir  Thomas  Mcrfx,  When  I  heard  t 
ticle  read,  I  did  tlunlq  it  was  an  arti 
itself ;  and  now  I  perceive  that  the  othe 
clcs  must  explain  this.  But  .f  the  trcas 
in  the  foUowin^jt*  articles,  I  would  see  the 
IS  not  for  the  interest  of  ihe  Commons  t 
tiply  treasons  \*  bui  still  to  consider  w 


STATE  TRIALS,  32  Chailis  II.  l680.--£i;nf  Ckirf  Justice  Scroggt.    [206 

do  think  tliis  man  (8crogg8^  in  not  fit  for  his 
p|Bce,  and  has  done  crimes  lit  tor  great  punisb* 
mg.  Consider  that  all  the  ill  precedents  have 
been  the  result  of  mens  prejudices  iu  odious 
cases.  When  we  sufier  ourselves  to  be  trans* 
ported,  we  may  proceed  well  in  this  case,  but 
ill  for  ourselves  and  our  posterity. 

The  Speaker  read  the  Declaratory  CUIise  in 
95  Edw.  3, 

Sir  Fraaris  Winnington.  Hie  gentleman  wha 
spoke  last,  calls  ine  up.    1  did  tnink  that  poini 
of  dedaratoi'y  treason  inherent  in  parliament 
What  I  say  shall  not  relate  to  the  person  of 
Scroggs,  but  1  shall  go  upon  the  warrantable 
steps  of  our  ancestors,  in  what  they  have  dnne 
to  lay  the  foundation  oi'  right.     His  aigument 
(to  my  understanding)  though  the  power  of  de- 
clarator^' treason,  ^c.  be  agreed  by  the  House, 
yet  his  argument  does  go  directly  against  de* 
clanRory  treason.    To  be  better  understood, 
I  shall  state  the  law  how  it  stands  upon  that 
statute  25  Edw.  8.  and  the  precedents.  By  the 
statute  there  is  no  necessity  that  the  ofience, 
before  you  declare  it  treason,  should  be  fekmy 
before.  1  Hen.  4.  chap.  20.  1  Edw.  6.  chap.  3. 
1  Mary,  chap.  t.  By  reason  of  the  disorders  of 
the  kingiluni  in  the  barons  wars,  the  parlia- 
ment md   reduce  all  treasons  to  the  statute 
S3  Edw.  3.    I  obsene  tliat,  since  that  time» 
there  should  be  no  other  treasons  but  what 
should  be  adjuflgcd  and  agreed  in  parliament  ; 
by  which  1  do  plainly  observe,  that,  to  that 
time,  there  were  other  treasons  than  in  that  8t»« 
tute  are  enumen^M ;  and  that  statute  talus 
them  not  away,, but  forbids  the  judges  to  med- 
dle with  them  in  judgment.    As  this  case  is, 
by  search  of  jirecedents,  there  was  never,  or 
very  rarely,  any  judgment  in  parliament  which 
the  judges  in  Westminster- Hall  or  commis- 
sioners of  Oyer  and  Teniiiner,  could  try  be- 
low ;  all  was  upon  declaratory  trcabon.    But 
says  Finch,  <*  By  25  Etlw.  3.  the  parliament 
did  not  declare  a  treason,  unh*ss  it  was  felony 
at  common-law."    But  to  dc^tlower  the  ijueen, 
and  several  other  instances,  as  the  biiuging 
six-pence  faltie  money  into  England,  ^as  de- 
clared treason  by  tliat  statute,  and  was  not  fie* 
lony  before.  In  the  case  of  Hichard  Weston, 
who  deliveml  a  castle  at  Berwick,  and  Corn- 
mines  at  Aries,  botli  n-crc  judged  treason.  Par- 
liara.  Koll.  Numb.  5. 1  would  know  whether  that 
was  felony  at  common- law  ?  It  was  oijy  breach 
of  trust    against  the  |^\'emiiieiit.     A'he.  of- 
fence of  TresiJian  and  Ikslknap  Has  no  liokNij 
bcfoi-e.     But  as  ^laynard  said,  «*  That  what  b 
committed  to  the  dchtmction  of  tliegoTcrnmcnt 
dc<(er\'esas  much  piininlinient  as  those  treasons 
in  the  statute  ;'*  but  to  Nubver^e  government, 
tbat  is  a  (Kirliameut  treason.    But  1 1  Rich.  IS. 
thorc  was  a  distinction  of  treasons,  which  were 
not  hy  that  statute.  For  thatqiiestion|>ut  to  tlie 
judges  (TresUian  aud  Jielknap)  belonged  to  the 
IMir]ianient,anflmittotlioiu,u>dccide-  And  they 
are  not  made  but  declared  treusons  at  common- 
law  whir!i  were  not  lelonics  bel  jl-c.    The  main 
objection  is  agreed  as  to  the  declaratory  power  of 
treason  in  |Nurliament.   Butitisiugedby  Findii 


it  oonmon  law  ;  for  when  we 

it  treason,  thejud^  at  West- 

•  HaD  aanst  judge  so.    In.  the  case  of 

.^■sewdoii'a  hnpeachment  the  Lords  did 

9  '*  That  our  chaige  was  general  trea- 
therdwe  1  desire  to  express  paiticiilar 

ria  ihis.cfaaige.  Pray  be  wary  in  that 
of  top  Bsavr  dedaratory  treasons. 
.  Fimek.  What  I  shall  say  in  this  case 
tt  IB  dlisdiaive  of  my  duty  to  my  coun- 
ad  I  ahould  be  aony  any  man  should 
Ma  an  advocate  for  Scroggs,  for  I  think 
at  fit  for  hia  place,  nor  ever  way,  and  I 
■ach  leas  now.  This  crime  he  stands 
ii  oi^  in  its  own  nature,  is  not  capital, 
km  he  committed  it,  he  knew  it  to  be  a 
hat  not  capital ;  so  that  I  would  not  have 
isr  a  crinae  ex  po$t  facto,  Tliis  being 
f  war  of  prelimmaiyy  I  shall  say  snme- 

10  the  declaratory  power  in  the  parlia- 
Siippoae  you  had  such  a  power,  yet  no 

can  be  dedarad  treason,  but  by  King, 
I  and  Commona  ;  you  go  on  a  little  too 
hst  lo  decfaune  it  bmrc  you  impeach  him. 
hit  I  shall  chiefly  insist  upon  is,  the  de- 
ar power  in  pariiament  itself.  What  is 
|r  Maynard  is  a  doctrine  so  luiKchievons, 
is  age,  or  the  next,  ma^  rue  it.  When 
Mc  onee  declared  the  fact  treaj?on,  the 
I  maT  judge  that  foct  as  treason  for  the 
;  oolese  it  be  with  a  *  Ne  timhatur  in  ex- 
liBi.'  Put  the  case  of  a  f«ircible  entry,  a 
gicater  crime  than  a  robbery  on  the 
ay ;  for  that  pots  a  man  in  fright,  and 
May  his  land  as  well  as  his  money.  Be- 
M  Bimte  95  Edw.  3.  there  were  great 
la  m  the  kingdom,  and  there  usudly  fol- 
e;  ami  4IS  the  parliament  became 
ade  than  the  other,  they  were 
lerUs  of  their  rage  ;  it  may  be, 
may  come  again ;  and  then  the 
i  mast  punish  upon  the  like  occasion. 
supuose  parliamenti  in  being,  nor 
y  and  what  a  miserable  case  will  it 
—  upon  such  judgments  no  remcfly  can 
<  !  By  the  sUtute  25  Edw.  3.  in  high- 
I  die  forfeiture  is  to  the  king,  as  well  of 
iddofodier  Lords,  as  of  the  king.  Ano- 
art ;  in  petty  treasons  the  forfeiture  of 
Crimea  m  to  the  kml  of  the  fee.  And 
le  there  mav  he  many  snch  like  treasons, 
leeediags  shall  he  stopped,  till  the  par- 
adcdare  whether  the  crime  bo  treason 
ay.  The  intent  of  that  act  was,  that  t  he 
LMifthould  not  lose  their  rights  and  tbr- 
'  sboukl  be  given  to  the  king,  and 
ahoald.be  stopped  till  the  treason 
1  W0ukl>  have  a  precedent 
a  eier  apy  offenre  was  de- 
-_  in  parliament,  that  was  not  fe- 
1  whether  ever  they  did  declare  or 
,  an  out  of  his  life  ?  By  -  bill  you 
^M  deliharation  ;  the  Lords  and  the 
of  it  5  but  here  by  a  itecla- 
icyoa  pead  it  but  onoe,  and  in  a 
Sbclare  a  man  a  traitor,  which 
a  man  out  «d*his  life.    I 


S07]         STATE  TRIALS,  3?  Charles  II.  l6S0 — PyccccdingM  againai 


*>  If  you  oome  and  call  this  treason,  tlie  jmlji^ 
will  call  it  treason ;  and  Mill  you  Gfire  thein 
that  poirer  ?"  Uut  the  declaratory  (K>vi'er  is  to 
he  ar)^e<l  lor  wery  s|>ecial  caKe :  and  if  so,  it  is 
not  an  anniment  to  sup|M>rt  ileclnrntorv  power 
in  thejwtj^,  but  toprrvent  it.  In  the  case  of 
Emnson  and  Dudley,  the  judpjfes  could  n<it  pro- 
fxeu  upon  .tluise  imiictiiients  l  Hen.  8.  They 
came  to  parliajuent,  and  the  history  says,  they 
were  attainted  ill  piiriiainent ;  lord  Herbert,  in 
his  history,  says,  *'  For  adhcTinfo;' to  the  ldii(;:'s 
enemies.*'^  But  the  journal  of  tlie  Lords  liup- 
pened  to  be  inR^iccted  in  kin^  Jameses  time, 
when  the  Lords  intended  to  give  a  judffiucnt, 
but  they  found  it  only  uiisdenieanor — The  at- 
tomey-u^iieral  bnuigbt  in  the  indictment  of 
Empsou  and  Dudley,  and  the  Lords  took  no- 
tice of  it,  anil  calleil  it  '^  Prodi forie^**  though 
it  was  but  a  bare  encroachment.  In  the  ff>rty 
articles  afraiust  sir  John  Finch,  and  the  articles 
against  ju^'tice  jkrkeley,  iIh'v  were  inflicted  of 
treason,  in  the  goueral  articles,  us  in  this  case ; 
they  iel\is»'d  a  lawyer  to  plwid  before  them  in 
the  case  of  iSbip- money,  and  tiicy  refiLscd  a  jury 
to  enquire  intf»  the  niisttenieunorof  the  spiritual 
GOurfN  ;  and  all  the  articlirs  said,  <*  PnuUiurie  :'* 
For  ht're  is  a  thing  we  must  consider:  Tlic 
Chancellor  is  kceiHT  of  the  king^s  conscicuf'e, 
and  tlie  judges  of  the  kint>*8  oatli,  to  do  cnual 
ju&tic^,  **  secundum  \virv\u  term*,**  and  when 
they  impose  aiiNtmrj^  power,  it  is  n(»t  as  in  the 
case  of  tres|»asK  or  felony,  but  that  is  to  tiiibvert 
the  govemm«'nt.  The  case  of  justice  Tlioqie, 
23  Edw.  ].  *  Sacramentuni  Domini  k«t;is  et 
■  siium  malicio.*^,  ikhi\  et  rebcllitir  falsitica- 
*  cavit.'  So  we  must Judg(> tliinir^  acoR'din^rto 
reason.  This  man  w;is  supfMH^cd  to  Ih*  learned 
and  virruous.  He  has  ilie  kecuing  of  the 
kin;7*s  ofith,  and  lit*  has  l»etravcdit;  Thorpe 
did  so,  und  was  hangiul.  i  am  n(»i  now  to 
make  a  declamation  avfainst  Scroggs,  Imt  for 
my  country.  In  the  ^lirror  of  Justice,  Fo. 
135.  tliitx?  of  a  jury  tu^ipiitted  a  man,  and  nine 
found  him  guilty  ;  a  judge  put  out  three,  and 
put  in  thnt?  who  found  it ;  and  the  man  was 
nanged,  and  the  judge  was  hangtti  for  it.  If 
not  checkf-d  in  the  canvr,  a  man  will 
tell  us  when  we  shall  have  justict\  and  wlien 
we  shall  have  none;  and  he  certainly  de- 
iierv4S  the  cviuiuri' tif  treason.  *•  Givat  offi- 
cers have  much  to  lose,  ;uid  it  is  an  awe  u|N)n 
them,''  Finch  said ;  but  I  am  ntore  afraid  of 
an  arbitrary  judge,  than  of  tlic  lionls  and  the 
hundred  i'ommons  judgment.  A  man  vinll  lie 
eontent  to  lie  liangi>«l  when  the  parliament  savs 
he  is  naught.  (Tlie  Honst*  laugheil.)  lie 
would  Im>  a>liami*d  to  live  ;  he  would  have  little 
comfort  to  live,  es|)ecially  in  his  own  ctiuntry 
vtluTe  the  ^larlianu'nt  shsill  think  him  a  traitor. 
In  Husband's  Collections  of  the  Tmnsactiona  of 
164t.  ^cc.  tile  attorney -g^'ueral  exhibits  articles 
t>f  treason  against  the  li\e  metidH^rs,  fordoing 
their  duty  in  parliament,  viz.  **  That  they  luul 
•ndeavoured  to  alienate  the  affections  oV  the 
people  airainst  the  king.**  It  is  not  said,  '*  To 
•Uenate  the  atfei^tions  of  the  king  from  the 
fMple,  when  they  caiiMl  l»vt  justice*' — 


Those  who  were  for  ship-money,  wen 
to  be  treason,  *^  To  alienate  the  aflectioi 
people,  ^c."  "Subverting  the  ftmc 
laws"  was  as  general  an  articde  then 
is  now.  Mow  the  quortion  is,  if  any 
unanswered — But  it  may  be'aaid,  **  j 
you  let  the  judges  declare  it  'treason 
judgments,  when  the  psrltanient  has 
it  treason  P"  Certainly  there  is  no  daof 
in  tliat.  In  lord  SStrafibrd's  case,  by 
*  trahatur  in  exemplum,' people  thong 
never  to  be  done  again — The  judges  n 
the  indictment  in  a  doubtful  treason,  I 
bring  it  to  the  parliament.  All  the  m 
a  bill  of  attainder,  and  a  *  Ne  trahat 
If  great  offences  as  these  escape  with 
judgment,  how  shall  we  oome  at  otl 
men  that  shall  offend,  &c.  P  If  this  < 
the  Lords,  in  their  court,  to  judge,  i 
^ive  a  judgment  suitable  to  the  fa^  (  < 
mg  it  treason  will  not  make  it  so— An  '. 
man  ought  to  be  content  with  that  jiul] 
lUit  the  <qucstion  is.  Whether  the  L 
commit  8cn^gs  upon  tliis  impeacbi 
hail  rather  sucli  a  man  was  tied  u|>, 
loo>e.  The  couunitment  of  kutI'Danb 
solenm  cntr>'  in  the  Lonis'  Journal ;  ; 
shoulfl  we  siip|»osG  a  difference  with  tl 
about  his  commitment?  when  anile  i 
in  their  journal,  when  the  Lords  sbi 
examining  all  due  circumstances, 
char^  not  to  be  treasou,  we  muKt  be 
The  judges,  by  thus  discharging  jur 
uiion  tlieiu  a  legislative  authority,  uiul 
mn//.le  mt-n,  und  sew  up  their  mouth 
the  laws ;  and  shull  not  the  parliament  < 
tliemP  The  juries  weredischanj[ed  lie] 
made  their  presentments.  Shall  the 
we  Nhall  ha^  e  no  law  ?  I  woubl  know, 
all  tJie  former  offences  men  have  bee 
uiHui  in  |»arliament  do  come  up  to  this 
ing  said  this  oi'  the  power  in  parliamei 


I  «.i. 


i  c^iratorv  treason,  the  |ioint  is  well  set 
I  to  \Hi  sfiaken.  licss  crimes  than  th< 
I  fornierU  called  treason.     Let  us  not  sV 


be  afraid  in  this ;  we  have  precedents 
I  »id(^.     1  have  no  pn^udic*e  against  the 
man,  but  pray  let  the  articles  pass. 

Si'ijeant  Slaifnard,  What  3'ou  he 
told  by  a  gentleman  of  11  Rich.  Q,  is  f 
I  ticular,  and  very  observable,  **  The  C 
pray,  tliat  tlioLe  who  surrenderetl  tin 
.S:c*.  may  lie  put  to  answer  to  the  articl 
upon.**  Kii-hard  Weston  dehvered  t 
at  ll«ru ick  to  the king^s enemies,  wlie 
victual  enougli  and  munitiou  to  liavt 
out.  He  hail  judifinent  in  parliamc 
hang(><l  and  drawn  for  delivering  that  ci 
emlwwelling  \ias  no  part  of  the  senteno 
mines,  fnr  delivering  the  castle  at  Arlci 
out  kiive  of  the  king,  he  went  away  ih: 
ing  the  cnistle :  I  Me  defended  tkie  pli 
was  judged  to  death  liccause  lie  left  tl 
One  was  beheaded,  the  other  was  dr 
hanged,  and  vet  the  dnnre  is  not '' 
nr,"  but  by  bis  delmiiU  they  kft  thi 
and  were  to  answer  it  in  pwUament  \  \ 


i;  K]  STATETRIALSp  32  Chables  II.  \6S0.— Lord  Chief  Juitke  Scroggs.     [310 


i  ivtfiiiilwiii  by  award  oftheseignora  and 
\  InMiindhid  judgment  of  treason  ;  so  that 
4  Wiiiiiilpttntfrf'  treason  in  ono  case  of  fe- 
■i  kf.  btkeolher,  25  £dir.  3,  we  had  much 
i  M ikcML  kw  oif  *  Crimen  kese  majestatis, 
'    'riCBHipcfdiidiiontB ;'   the  one  was  an  or- 

!    fcnyjrijt if  the  other  <  in  campo  manic,* 

r   libjMgnl  by  MDate.    So  that  when  a  iiarti- 

.   nhr  CM  OMM  before  tlie  parhument,  tlicn  it 

;  Mtokjidgcd.    Butinourtime,  whenmen 

tmmumxoj idigion  and  the  whoie  Uw ! — 

Itlif  mak  thk  now,  that  we  may  not  be  de- 

|rindiliyijiiideiDent  upon  a  greator  occasion. 

ib.  Jlici   fwould  Know,  vrhetlier  the  de- 

{Mff  tf  t  csMle  wai  not  felony  before  that 

BMagvait  Weston,  &c.  ?  ItmuHthare 
feiriliy  tke  lord  constable,  or  lord  mar- 
ihl «rk  paiiuiieDt  I  would  know,  whether 
Ai  Lofk  en  ikor  the  judgment  of  high  trea- 
laklraMlher  pnishment  ?  As  for  Kich.  2, 
ImV Mt htfc precedents  urged  of  tliat  un- 
If  tne  ofienoe  was  treason  liefore 
I  ksr,  itii  not  necessary  to  be  lelony 
The  Lidictnient  of  Empson  and  Dud- 
%  viiiol"  Pipoditori^,"  but  by  an  additional 
"■ABpnunentk  was,  '*  For  the  adhering 
^^*  Bf*i  «ewes,"  and  that  was  treason. 
JjJ*J^Fiiich's  crimes  were  not  greater 
MMuliifluiil*!,  and  yet  an  act  of  parlia- 
^''^■Mde  for  that:  I  think  it  a  hard  case 
•■J^***  sot  irf his  life.  If  CTery  erro- 
Sl'^K!*  ^^^"^  ^  *  chancellor  should 
2? •  'J''^  oflfence,  and  every  cnYtneoiis 
nv  ■the  oiker  courts  of  Westminster  (that 
y***»*f  eter  ou^t  to  be  high  treason,) 
"5**jB«ttlis  pen!  of  their  ignorance, 
^^jy  It  is  resolved,  on  all  hands,  that 
J^Jypower  of  treason  remains  in  par* 
^>  ^ift  ■  objected,  "  That  it  was  nerer 
^^|*»iibut  what  was  felony  atcom- 
"!J*-  The  word  "  lelony"  there  imports 
i5?jj*  •  pwt  and  enormous  crime.  In 
JJJU*  flf  maim,  it  is  expressed  felonicl 

a^^*{^  A  great  and  enormous  crime  is 
„  j^Iihall  speak  to  what  Finch  ob- 
■v  it  must  be  felony  betbre  it  can 
— -Jf<  f"BMn  IB  parliament. "  The  cn.se  of 
PJJf*  OMKctnientwas  upon  the  statute  15 
-*h}  •^  not  much  rely  upon  that,  nor 
JH"*|i»OBdent  of  Weston  and  Coinminc-s. 
***^  to  delifcr  op  the  king*s  castles  or  for- 
^*^^fcht  tkey  are  tenable,  is  aiding  and 
>Wy  tt  the  king's  enemies.  In  that  of  1 1 
^tifcur  or  fire  judges  were  impeached 
'V^ui  eztnjudicial  opinion  agiiiiist  the 
■Went    No  man  could  say  tliat  was  fe- 

Eiifir  die  objection  against  "  the  un- 
liMiaf  Rich.  8,  and  precedents  not  to  lie 
H^  Ac:"  wfe  must  tdte  precedents  whore  we 
kwB  tkm,  and  I  take  them  al\i'a3's  to  be 
ilMrtB  tBDMB  when  there  is  oc^casion  of 
I  iRwdenlB.  I  take  all  those  precedents 
1  flick.  2,  to  be  legal  precedents,  and  not 
rcBHfCei  against  In  17  or  18  Rich.  % 
boms  Talbot  oonspired  against  the  Uft;  of 
iB^s  two  wides,  and  that  was  not  felony, 
etin  tkiMt  iMlianiiit  ic  WW  t^udfid  iTift- 
'^  viu. 


son,  and  not  fulony.     Sir  Thomas  Hacksy,  a 
priest,  proffered  to  the  Conunons  a  restraint  of 
the  excess  of  the  kind's  house  ;    the  king  took 
it  as  dcro^ory,  (&c.  judged — The  case  of  th* 
carl  of  North umb(»*luud,  5  lien.  4.      He  had 
given  liveries,  and  had  great  retainers  in  the 
north  ;  the  parliament  judged  it  only  trespass, 
and  not  treason ;   it  came  to  a  dispute  whether 
it  was  treason  or  felony,  and  it  was  judged  tres- 
pass.   The  several  judgments  against  EmpsoD 
and  Dudley,  &c.  The  oppressive  [iroceedings  of 
the  Court  of  Wards^and  llie  word  **  Prodi- 
tori^"  is  so:  andtlie  Lords  did  judire  it.     But 
if  we  may  believe  lord  Herbert,  in  his  History 
of  Henry  8,  tlie  charge  of  Empson  and  Dudley 
was  brought  into  parliament  by  bill  against 
them,  and  it  was  rejected,  as  not  hein^  well 
formed,  but  when  mende<l  it  never  nassed.  Tlie 
bill  is  extant  of  their  restoration  in  blood,  and  it 
makes  no  mention  of  their  being  iudg«^l  in  par- 
liament, but  they  were  attaiutcfl  by  course  of 
common-law,  at  Guild-hall  in  LcMidon,  and  at 
Northampton,  Dudley.      As  to  the  business 
now  before  you,  I  never  heard  but  that  the  sub- 
verting the  fundamental  laws  was  »*  PnMlitori^" 
in  an  impeaclmient.    This  is  si>oken  of  Scrcggm 
as  a  small  offence,  and  a  single  act,  and  there- 
fore a  hard  case  ;    but  we  ore  beholden  to  the 
shortness  of  his  reign  in  the  King's- Bench,  for 
no  more.     The  offence  of  Tresilian  wns  but  a 
single  act,  and  ship-monev  but  a  single  art^ 
and  riots,  as  Maynard  saiil.     But  to  destroy 
the  whole  government    The  dischai^e  of  the 
grand  jur>',  as  if  with  intention  to  sa^e  all  tlie 
Papists  from  conviction,  is  not  this,  forjudges 
to  make  laws,  as  in  the  case  of  furhidduig 
printing,  he,  ?  And  a  general  warrant  to  seize 
persons  and  goods  by  messengers,  is  not  this  a 
subversion  of  the  go^  emmeut  i*    I  believe  it 
was  done  with  that  intent.      If  Hrroggs  be  not 
a  good  lawyer,  he  ou^it  to  lie,  v.nA  must  an- 
swer for  his  fault  of  ignorance  of  the  law,  aa 
well  as  tlierest  of  his  charge.     You  cannot 
in  this  fo  less  than  the  word  "  traiteious  ;*• 
else  it  IS  casting  dirt  upon  former  impeach- 
ments. 

Mr.  Finch,  I  am  no  advocate  for  Scrogsrs, 
much  less  for  his  crimes.      I  onW*  said  *'  We 

ml 

ougnt  to  be  cautious  how  we  construe  treasoa 
iti  purUamcnt."  If  every  illegal  act  be  treason, 
Me  are  in  an  ill  case.  As  for  the  case  cited  of 
earl  of  Northunslterland,  it  was  plain  treason^ 
and  the  Ix^rds  interposed  for  mercy  to  the 
King.  As  for  Hacks>  's  cast*,  it  was  repealed  ; 
and  for  Talbot's  case,  that  was  declared  treasoQ 
by  the  lx>rds  alone,  if  you  will  allow  that  for 
a  pretredent. 

3Ir.  Ptiul  Fulfil.  Sir,  we  are  not  gouig  about 
to  declare  any  thing  treason,  but  to  offer  our 
articles,  and  leave  it  to  the  Lonls ;  therefore  most 
of  these  arguments  would  be  more  proper  there  : 
for  we  only  impeach,  they  are  to  be  the  judges 
whether  tlie  matter  be  treason  or  no.  It  U 
true,  we  ought  to  be  cautious  what  we  do  in  it, 
because  it  is  not  pl»jpcr  thtrt  thit  House  should 
impeach  a  man  for  treason,  without  having 
good  gioujuls  for  it.    But   is  not  the  oid«r 


2in  RTATETRIALS,  3?CHA8LKsn.  l6%0^Pn€adimg» ^ 

rather  for  Inil  than  lo  fat  him  go  4 


ihfiirt  priMifif  H  kini]  'iTaa  art  iifntaK 
ithliM  ntk  biw?  Is  ii'ii  ilii^iidprif  ^nd  inri'.-s 
Mini  jNirt 'it'thw  vnvMiimmt?  .4ni1 
iliHiMiwiiiiK  (ir  tltPiii.  M  thi<  jadi'v; 
Ifinndrr  tlinn  iiwIi->.«?  Ai        -'-- 


w  mi<  !)■•- 


ittimilitN  roM'ixi-  Imoki- Biirl  pappri  uIhIi _  .  . 
•nHil'illi  rint  nil  trii<l  tfitlir  mibviTiuon  <>fl)ic 
Kni'i'iiiiiii'iit  ?  hihI  what  Wtlrr  ifroon*'* '■houlil 
m-  Iinvc  f'lr  niir  prrH-n^rnt(^  ^  I  ttiiiik  the  ar- 
Mrlr-i  art'  wiJIilrawii,  anil  t/iiifht  lo  be  cngroMciI 
■1  llipy  iirf. 

Mir  tdrbiiTil  Tun/ili:  Sir,  I  (unnnt  admit  that 
priili:iim'ntiii,  li^  iin|i(>a( Ihiii-iiIk Iwf'irr  Ui«  l^irdi 
rail  iiimIii-  any  lliitif;  Iri'WHin,  btit  (inly  bucIi 
niiillfniHNHiTutmiuinltvMiinmraihw,  bdiir*- 
till'  NiMiilr  <■!'  ■{divaril  tli'i'  Itiird.  And  I  tiiiiik 
HI'  <iii|[li(  1(1  )n'  mi  <-iiiitiiiii!i  III' our  iKnl'Tities,  as 
mil  tri  prcH  liir  •Hirli  )irPriili'iitK,  littl  ytlli  |>iil 
iiilii  lid' liiiiiilii  (it'l)iF  IxiiilHajKnTor,  forwIiH'h 
wr  may  liavp  caii*-  rn  miml  liimraArr,  biit 
iirtiT  KPt  Imrk  nijiiiii :  fur  tfir  I/>nls  do  mil  inw 

juirr  »ilti  lliiiM- |Hi»rrN  Ihry  miri>  q[el.  'Iliere 

'il<uiiN  bv  wliirh  ii  a]>iM':ir<,  that  the 

tr  iill(iii|il(il  In  inakr  iln'liimtivGlrra- 
■iiiiH  iiKiiir,  nilliinit  nnv  hniM-nrhini'iil  <'n>in  iho 
CotimiiiiiN.  Iluvr  ni'arcliim'  yoii  pvr  llinn 
nu-iiiiriii:i'nii'iiil>i|inii'itiltlipri'in';1inicrkec]>l<> 
|Ih>  iilhiT  H  ny  (•Cnitikini;  iiii  ihtlarutivi?  Ircasuoi 
liiil  li>  bill. 

'I'Ih-  \tlu'1i-s  «t Ti'  rrnil,  niiil  niipsliim  pul : 

llrMitriil.  '■  Thai  Ilir  niid  Mr  IVillJam 
SrnH;ii<i  hi'  )ni)H'arhr<l  n|inii  ihr  uiil  Articin  ( 
anillliiil  llit-vuid  \Ttii-lis  U- iiiKToniiil.  Biut  car- 
iK-d  lip  ti  tlH'  l^mln  hv  my  hml  t'atondi^h." 

tlhhT.ll, "  "Ilial  iIh'  niiiiiniltn'  niipniiitol  to 
•MiiiiiiH-  tlit<  pr<Hi'rdhi):s<irilifJiH^'>  in  Wnx- 
iiiiiisiir  ball,  ami  iii  iitt-mw  iniixMrhtncniK 
ai|.iiiiM  hir  l-'rnm'is  N.hiIi.  riiivt'-,!!!"!!)'!'  iilthr 
('(•miiiiiii'  inras ;  >ii  I'hnnia!)  June*,  onr  of  the 
■iiiliii'^nl'ihri'iuul  t<rKinK'ii-Ilmi-h  :  uii.taiT 
IlK'hanI  Wminii,  mif  ol'ihf  borona  irt'ilw  «>nrt 
••I  K\i'lin|i)rr.  ih)  hriiv  in  «ucli  iiui>nH'famniti 
■  ill)  all  II'II miirnl  NptiM  " 


I  "  idly.  We  •«  of  opinion,  that  ihi 
halh  hern  twice  adjuated  betwixt  both 
,  Tiz.  in  the  nae  <d  the  eari  of  Claren 
I  the  ciM  oftheearl  ot'Uatifajr. 
I  "  Ik-^iiten,w«iliilihiBkitreT7nnMfi 
I  a^reeahlpioiunire,  thatbeahouldbe 
I  and  execul-;  his  place  of  Laid  Chief 
;  irliilst  hn  lte:<  uader  the  charge  ot'  an  I 
:  mpui  of'  hi^i  ireaaon. 

"  f-iklty.  It  may  deter  the  witntB; 
llicy  Khnll  sec  him  in  luch  gtrM  pawer 
whimi  ibcvare  to  ai^use. 

"  Kcnt.'Salishii^,  STaedeafieM,  Hv. 
8haftsbury,  F.  Heihert,  iHoDraoiitl:-! 
I'.  WhaitDn,  Clare,  Bodfonl,  Ma 
Ituckiiiffham,  Stamford,  ContwaUiK, 
Howard,  Grpy.Paffet,  RiTcri,  Cccw« 
Ordered,  that  sir  William  Scroei 
JusliL-e  of  the  King's  Bench,  do  (in  tla 


ihX  I 


the  king,  of  10,000'.  with  two  sufiicien 
to  be  hound  U'ith  him  in  5,000^  a  piec 
condititm,  tliat  he  ahall  attoid  ujnui  tl 
from  lime  to  time,  till  he  be  diticharp 
lm|>oachment  brought  up  fnmi  the  H 
CommoiDi. 

Then  sir  William  Scioggi  naa  brougl 
bar ',  liul  afler  he  had  kneeled,  the  L«n 
ceilortoM  him,  "That  the  House  hidi 
Tliat  he  should  enter  into  a  recognii 
lO.OOU/.  wilhlwosuretimtobe  tMMiDd* 
in  b,OO0l.  a  piece,  to  attend  to  tliia  Hon 
tioH-  to  time,  until  he  w-ai  disrhaif;^  of 
IWM'binent."  ,*nd  asked  him,  "  Viit 
i-oiild  oftW  two  sureties  as  were  ( 
sonsT"  And  he  propounded  Ihecariof 
anil  :tlidd.  and  tf 


IP  propounded  1] 
.1  the  lord  HatU 


V  I.OI 


>  I,  1681. 


The  question  n-as  pinioumtTd,  "' 
thereshotlbe  now  an  addnss  to  the! 
Mispenil  sir  Williiuu  Scro;?^  from  ihee 
of  lis  plare,  until  his  trial  be  over?"  1 
I  ions  question  beius- put,  "  Whi-thertt 
limi  sbaUbeDOtTputJ"'  It  was  resulic 

''  Ihutatieutiiut, 
"  Keiit,  Salishiir\',  niaftibury,  Hun 
OatT,  Ritert,  £■•«.  tHtainthnl,  Mw 
dm.  MaiirbeaFr.  IlMbett,  Howard, 
Vtfin.  P.  nitHtim.  Cadifir,  Rock 
Ctew*."' 

Horf  E  OF  Conon,  Jaaiiory  8 
<  IMwte  in  the  Comntmt  on  Ae  Li 
{  cwwitnng  Ltud  Chief  Jiu&cBScnigp 
%  ll~i:^BB  J.Mo.  The  cta{c  agai 
I  tUcl'  jutOM  !^c»«s  I*  al  ooMnon-l 
\  «aiuK>-kw  hMh.  I  take  ii  lobe  treaM 
i  pnam.  anJ  &«  ic  asMhcr:  aniaftrioi 
]  JMijm  mc  a  ht^  riKc  who*  be  i 
njanw*.  aad  nanf*  the  law.  ia  Bi 


ilieooBiiiiitted."  How  it  came  to 
r  in  lord  Danby's  case,  and  not  in 
tX  a  stand.  I  would  not  have  any 
nith  the  Lords,  but  out  of  fear  of  that 
It  have  our. privileges  torn  from  us  ; 
li  Yos  delivered  in  that  conference  rc- 
rd  Danby,  so  pleasinsf  to  this  House, 
in  one  instance,  blemished  by  bailing' 
nd  in  another  by  not  Kuspending  him 
I  would  appoint  therefore  a  com- 
repare  the  matter,  that  by  Monday 
ou  mayJie  able  to  go  to  Conference 
ordsa&mtit. 

rof  Lee.  This  u  not  the  first  time  this 
18  be«n  in  this  House :  in  the  case  of 
don**  impeachment,  the  Lords  would 
t  bim  before  the  Articles  were  brouc^ht 
EiOrda  refused  it,  the  Commons  insist- 
and  the  consequence  was,  lord  Cla- 
away,  made  his  escape,  and  to  salve 
Lords  sent  down  a  bill  of  banish- 
the  case  of  lord  Danby,  the  Com- 
ip  articles  of  impeachment,  which 
>directlv  treason  within  the  statute, 
Mr,  and  afW  several  Conferences, 
It  was  found  oat ;  which  was  a  pro- 
rtlie  parfiament.     Now  the  Lords 
lat  one  parliament  will  correct  the 
lotber ;  and  fefl  us,  that  the  Com- 
pAa  great  point,  that  an  impeach- 
oontimie,  though  the  parliament  be 
or  diiaolved.    j&d  if  Hcroggs's  own 
•ke  him  not  withdraw,  3iey  have 
olatioB  that  he  must  be  continued 
of  the  Lords  differed  at  the  Confer- 
l  it,  as  yon  have  heard.)     Now  it 
lUs  parliament,  the  Lords  go  about 
■icRwthey  think  they  did  in  the 
sas  loth,  the  other  day,  to  oppose 
I  nsBiflr.  &c     But  consider  tnaL  if 


Commons  sent  .up  word  to  the  Lords,  '<  That 
they  were  not  bauable  but  by  their  consent." 
This  was  February  16,  1641. 

Sir  Fr.  Winninf^ton,  I  concur  with  Powle, 
"  That  the  management  of  this  business  in  the 
Lords  HuiLse  relatinjj;  to  Srroggs  looks   like 
an  industrious  disposition  to  break  us.*'  These 
prorecdings  to  me  are  wonderful.     I  woidd  not 
invade  the  rights  of  tlie  Lords  in  what  they  do- . 
They  are  now  in  tlieir  judicial  capacity  as  a 
court,  and  not  in  their  legislative,  and  so  wo 
may  search  the  record,  and  take  out.  copies. 
The  fact  has  ben  stated,  and  I  have  been  indus- 
trious to  enquire  into  the  reason.  It  is  wonder- 
ful to  all  I  speak  wuh.     It  is  said  **  Their  rea- 
sons are,  that  tliis  cnarge  is  not  treason  ivithia 
the  statute,  and  so  it  is  discretionary  with  them, 
and  they  may  alter  tlieir  order.*'     fiut  the  sta- 
tute is  out  of  their  case.     We  shall  show  them 
they  are  in  the  wrong,  as  well  as  in  Danby's 
case.     But  as  for  altering  their  order,  we  have 
as  great  right  in  the  process  and  management 
of  the  impeachment  as  in  the  justice   of  4t. 
Tlie  reason  is,  that  the  person  is  only  aninver- 
able  for  the  crimes,  ami  I  never  heard  that  tlie 
persons  that  are  to  judge  became  bail  for  the 

t>ei'son  to  be  tried.  >V e  are  like  to  have  admira- 
ble determinations.  Our  inheritance  is  right 
of  process  of  the  law,  as  well  as  in  the  ju(%- 
ment  of  the  law.  For  the  king  to  sequester 
him  from  his  place  they  would  not  address 
for  it,  but  leave  it  to  Scroggs's  modesty  whe- 
ther he  would  exercise  it,  or  no ;  but  the 
Lords  will  not  commit  him.  What  makes  me 
stand  up  is,  that  we  should  not  now  lusike  a 
doubt  of  what  iTas  always  no  doubt.  There- 
fore I  would  not  search  tor  precedents,  whetlier 
it  be  our  right  or  no,  but  to  strengthen  the  opi- 
nion of  the  world,  now  tlie  nation  is  upon  its 
hist  IcfTK.  that  we  mav'avoid  all  cause  of  diflTe- 


S 1 5]        STATE  TltlAlJ^,  St  Ch arlss  If.  i6B0>^Pr$eieAigi  i^ftSmi 


fkr  John  IVever.  I  lud  oecmsioii  to  look  upon 
the  preoedesi  of  50  Edw.  8,  and  it  appears 
upon  |be  rolls,  that  lord  Latimer  upon  the  im- 
]ieachn)^nt  of  the  Commons,  was  committed  to 
the  Marshahea,  and  he  wnn  bailed  by  five  bi- 
shops, thrpc  earls,  fifteen  barons,  aoA  thirteen 
Commons,  f  lere  appears  a  rif^t  in  the  Com- 
mons to  his  bailment,  because  the  thirteen 
Commons  became  his  bail  by  consent  of  the 
Hoase.  4  Rich.  2,  lord  Ferrers  was  bailed, 
hut  it  is  not  cei*tain  whether  the  Commons  bailed 
))im,  but  tlic  Commons  ahvays  had  a  part  in 
consenting  to  it.  But  tlicn^  is'a  difTerenoe  when 
toe  chnrg^  is  not  from  the  Commons.  In  kinp 
James's  time,  in  the  impeachment  against  lora 
Bacon  and  sir  John  Beimet,  4cc.  there  were 
never  any  articles  nufainst  them  from  the  Com- 
mons ;  hut  complaint  nas  made  at  aConference 
a'^ainst  thcin,  and  the  Lords  formed  the  arti- 
cles ;  but  wlicn  any  articles  bordered  upon  trea- 
ficin,  as  thess  ar^lnst  Scroggs  do,  toe  Lords 
liave  always  sequesUrefl  the  [>ersou. 

Ordered,  "  That  a  Committee  bo  appointed 
to  inspect  the  Journals  of  this  House,  and  of 
the  House  o£  Lords,  and  precedents  to  justify 
and  maintain,  That  the  Lords  om^t  to  commit 
persons  to  rafe  custody,  when  unpeached  for 
lii^h  treason  by  the  Commons  in  parliament." 

In  two  days  after  tlie  parliament  was  pro- 
rosued  to  January  SO,  and  soon  afler  was  dis- 
solved by  proclamation,  and  a  new  parliament 
was  summoned  to  meet  at  Oxfbrd  on  March  91. 

House  of  Lords,  March  124. 

The  Answer  of  sir  William  8croggs,  knight, 
was  read,  as  followeth : 

•*  The  ANS^VER  of  Sir  WM.  8CR0GGS,  knt. 
Chief  Justice  of  his  Majesty's  Court  of 
King's-bench,  to  the  Articles  of  Impeach- 
ment tixhibited  against  him,  by  the  Com- 
■ions  of  England  in  the  late  Parliament  as- 
sembled. 

**  Tlie  said  sir  William  Scroggs,  by  and 
under  protestation,  that  there  is  no  mamicr  of 
high  tri'iLSon,  nor  any  overt  act  of  Iiiffh  treason, 
pai-ticularly  alktlgcd  or  expresst^l  m  the  said 
Articles  of  Imjicachment,  to  which  the  said 
William  Htrroggs  can  or  is  Innmd  by  law  to 
make  any  Answer  unto ;  and  saving  to  him- 
self (and  which  he  prav<*th  may  be  saved  to 
him),  both  now  and  at  all  times  liereaflcr,  all 
and  all  manner  of  h  'netit  anil  a'.lv;uita<^^  of  ex- 
eejition  to  the  ini^n^Kriciicy  of  thf^  sam  Artit'les 
hi  poi!it  t)f  law,  as  wr-ll  for  that  there  is  no  oveil 
act  of  trenson  expi-CKstnl  then'in,  as  ihr  all  other 
the  dcfei-t<  herein  a|n»earing :  for  olea  thtTPto, 
he  s;ilth,  That  he  is  in  no  \yhnr  guilty  of  all  or 
any  the  crimes,  frflences,  or  misdemeanors,  of 
what  nature,  kind,  or  Quality  w>ever,  bj'  the 
said  Articles  of  Inipeacnment  charged  u;,>on 
hhn,  in  manner  and  f<trm  as  in  and  by  the  said 
Articles  is  supposed  ;  which  he  id  ready  to  aver 
and  prove,  as   tliis  honourable  House  shall 
i»«rat   and  humbly  mibmifieth  himself  and 
the  JMIioe  of  his  cause  to  this  most  honomble 


House  ;  and  prSTSth  to  W  dbohaiy 
prenuses,  and  to  be  hence  4ismi»seu, 
quitted  of  all  the  matters,  crinsa,  mil 
ors,  and offeaoes,  io  and  by  the  saidA 
Impeachment  charged  upon  hmk^  dec 

««WiLL.Scao 

After  this,  a  PtetitioD  of  sir  Wm. 
was  read. 


(( 


To  the  Right  Hononrahle  the  Lords 
and  Temnoral  in  this  present  Pi 
assemblea.  •  The  bumUe  Petitk 
William  Scrogffs,kiiiffht,  Lord  C 
tice  of  his  Miyesty's  Court  o 
Bench. 

**  Sheweth  ;  That  your  mtitioner, 
parliamentft  was  hupeached  before  3 
8hi])s,  by  the  House  of  Commons,  o 
Articles,  stiled  High  Treason,  and  oti 
crimes  and  misdemeanors.  To  which 
titioner  hath  now,  with  the  first  opr 
put  in  his  Answer  into  this  hononraDl 
Your  petitioner  humbly  prays,  that  y^ 
ships  n'ould  be  pleased  to  appoint  so 
day,  for  this  present  House  of  Con 
reply  ;  that  so  a  conrenient  day  ma 
pomted  for  the  hearing  of  the  cause,  t 
petitioner  may  no  longer  he  under  the 
of  the  word  high  treason.  And  yi 
tioner,  as  in  duty  bound,  shall  ever  un 

«•  Will.  Sea 

Ordtred,  That  the  copies  of  this  Ai 
Petition  shall  be  scut  to  the  House 
mens. 

But  the  parliament  being  soon  a 
rogued,  thisaflair  was  drop|)ed;  ho 
was  thought  proper  to  remove  Scro| 
being  C*h^  Justice ;  which  was  done 
the  marks  of  favour  and  respect,  beinj 
a  pension  for  life.  But  a  parliament 
sure  did  not  hinder  the  court  from  ( 
others,  who  had  been  censured  a  fittk 
as  may  appear  by  these  Votes  of  llie  1 
Conunons. 

October  29,  1680. 

Resolved,  «*  Hiat  sir  Francis  Wil 
promoting  and  presenting  to  his  km 
address,  expressing  an  abhorrence  to 
his  majesty  for  the  calling  and  Hitting 
liaments,  Katli  betrayed  the  undoubted 
the  subjects  of  England.'* 

Ordered,  "  That  sir  Francis  Withe 
nelled  this  House  for  tliis  high  crime  ; 
lie  receive  his  Sentence  at  the  bar  of  tb 

*  Mr.  Hatsell  (Kotos  to  4  Precede] 
144,  145,  156,  199,)  rehes  very  mi 
this  case  in  refutation  of  Blarkstone^i 
that  a  comnHnier  cannot  be  impcftchi 
the  Lords  for  an v  cajntal  offence.  As ' 
see  the  Case  of  Edward  Fitx-harris,  a 
infra. 

t  As  to  the  continuance  of  pariii 
impeadunents  notwithstanding  proreg 
die  Case  of  the  earl  of  Danby,  m/^-ii. 


Iirl    STIkTE  TRIALS.  32  Ch AELKS  II.  1  G^O.-^Lord  Chit/ Justice  Scr&ggi.    [ 1 1 8 

horn  Mr.  Speaker.*'*    (Which  *■  petitioning  for  the  sitting  of  this  parliament, 
Kdingly.)  nath  betrayed  the  rights  of  die  subject.'' 


U  iweived  arcortmgjy. 

Niwember  13,  1680. 

BosKred,  **  Thai  gu*  Geosige  Jefferies,t  Re- 
eorkrof  Loodon,  by  trailucing  and  obstructing 

'  *'The  merit  of  this  raised  him  soon  to  be 
tjs4^  ;  for,  indeed,  he  bad  no  other  merit." 
Jfaaet 

f  The  following  is  Roger  North's  account  of 
All  asatter :  *'  The  next  case,  that  came  on, 
was  that  of  air  Georee  Jeflferies,  the  Recorder 
tf  Loodoa,  which  had  as  poor  a  come-oif.  Our 
Eirtory  [Kemietl  here  tells  us  that  he  u-as  re- 
Bored  from  his  lleoordersliip  by  vote,  which 
tis not  so,  as  will  appear.  But  there  uas  a  trick 
d«  in  that  matter ;  for  the  party  hail  a  great 
nbd  to  gd  air  George  IVeby  m  to  be  Rc- 
Mder  of  London ;  for  he  was  a  tnisty  confident 
rfftctioD.     It  seems  that,  in  conrlusion,  Kir 
Gewge   Jefferiea  had  a  rei)riinand  upon  Iiis 
kaees  at  the  bar,  and  so  came  off  for  his  crime 
rfabbuniug ;  which  was  thought  a  fair  com- 
pssitiaii,  after  such  discourse  as  bad  been  of  im- 
feachin^  their  heads  off.     But  the  preliminary 
Mute  aui  mm,  was  that  he  should  snr- 
placc  of  Recorder,  to  which,  in  the 
,  he  agreed,  and  did  according!  v,  and  (as 
VH  oeDMrted)  Treby  succeeded   him.     But 
lUi  oAcnoe  of  his  was,  bv  the  order  of  tlie 
intimated  to  the  lord  mayor  and  alder- 
,  that  tfacnr  might  not  fi-ant'a  cause  to  re- 
upon  a  Maaoamus,  in  case  they  should 
npan  hacve  turned  him  out ;  for  it'  lie  hatl 
not  eonaplied,  but  stood  on  his  right,  he  must 
hcfehad  all  the  defences  the  law  allowed,  and 
■Ma have  argued  auch  a  matter,  returned,  not 
talc  a  ■rfkiient  cause  ;  and  the  judges  would 
IttfcdaaakimT^t.  This  consideration  made 
Ar  party  take  up  the  intimidating  process,  and 
gtm  fmmmkm  by  a  surrender  without  suit  in 
Mw.    7%t  great  difficulty,  that  ky  upon  the 
■piiilB  of  sir  Geoige  Jefferies,  was  to  come  off 
weB  vnA  the  king ;   lest  this  oomponnditig 
with  the  ikmunons  should  confonnd  him  at 
Court.    Therefore  he  begged  of  his  majesty 
that  he  would  girc  him  l^Te  to  surrender  his 
dbee ;  which  3ie  long  was  loth  to  do,  because 
k  was  of  aueh  an  over-ruling  genius,  and 
behariear  towards  men  whom  lie  prc- 
'  to  awe,  as  enabled  him  to  be  very  uiHu- 
iameog  the  dtisena,  and,  in  other  respects, 
eaoU  Bot  hj  so  well  employed.    He  beseeched, 
aaueated,  apd  importuned  the  king'  so  very 
mmhj  that,  at  last,  the  king  granted  hia  re- 
tuest;  ao,  havinig  his  BU^festy's  leave  to  resign, 
ka  took  his  chiding,  and  was,  as  he  tliou^it, 
ffcf «i  M  Curiu.    But  the  ever  foot^tious  king 
vaa  pleased  to  laugh  and  say  tliat  sir  Georg«*. 
'  '^  '     was  not  fMrtiament  |Nroof ;  and,  how- 
he  found  interest  in  corners  ulniut  tlie 
the  king  never  had  a  real  value  fur  htm 
*     Examen,  p.  550. 
Sir  John  Reresby  gives  us  tiie  following  par- 
iiaiAM  respecting 'Jefleries  : 
«« The  nest  day  IhappoMdtediatwhh  air 

3 


Ordered,  *<  That  an  humble  address  be  made 
to  his  majesty,  to  remove  sir  George  Jefieries 
out  of  all  public  office's." 

James  Smith,  the  lord  m&^'or  of  London,  whom 
I  had  tbrincTly  knoTin  mtiinately  well,  and 
who  was  of  a  very  loyal  club  in  the  city,  where 
I  use<ltogo,  wfiile'the  fanatic  Plot  was  in 
agitation.  This  gentleman  eoniplained  to  me, 
that  he  enjoyed  no  more  than  the  hare  title  of 
lord  mayor,  the  loi-d  chief  justice  Jefferies 
usurping  the  |K>wrr  ;  that  the  city  hafl  no  sort 
of  it)tf.Tcoui  :$e  with  the  king,  but  by  the  inter- 
vciiiion  (d*  that  lord  ;  that  wliatever  was  wc^il 
done  in  the  city,  was  attributed  to  his  inlluence 
and  niauageinVnt ;  and  that  himself  and  the 
aldermen  were  by  the  Court  looked  upon  no 
better  tlian  his  tools  :  that  upon  all  occasions 
his  lordship  was  so  forgetful  of  die  higli  dignity 
of  the  city  as  to  use  liim  and  his  brethren  with 
contempt ;  iii  fine,  that  the  loni  chief  justice 
was  to  l)e  pitied  ;  that  his  liaughtincss  would 
be  the  ruin  of  him  ;  and  that  he  actually  in- 
tended to  let  the  king  into  the  m^-stcr}*  ol' these 
tilings;  buttliat  he  thought  the  present  time 
was  ntit  altogether  so  proper,  seeing  a  remon- 
strance of  this  tendency  might  be  construed 
into  mutiny  and  disaffection.  I  answered,  that 
tlie  king  was  too  well  acquainted  with  the  lord 
itinyor's  seiTices  and  integrity  to  sus^kx^  him 
of  that,  and  that,  in  my  opinion,  now  was  the 
fittest  time  for  exposing  a  man  ui  that  credit  at 
court ;  for  that  now  the  greatest  notice  wouh I 
be  takeu  of  aU  siicdi  grievances.  Indeed  1  was 
sorry  at  my  hcait  to  see  such  good  men  dissa- 
tisfied in  any  degree  ;  but  I  was  as  glad  to  find 
this  proud  man  seen  tiinmgh  ;  for  he  had  to 
my  knowledge  used  the  city  of  York  as  scur- 
vify  as  it  was  iHWsible  tor  him  to  use  the 
city  of  liondon.  r  or  at  York  he  put  out  fire 
alHcrmcu  though  he  had  soleiuuly  engaged  to 
keep  them  in,  and  that,  uitiioat  so  much  as 
allowing  them  to  be  heard  as  to  the  crimes  they 
stood  accused  of.  llie  lord  mayor  said  the 
very  8ain<;  had  been  frequently* practised  in 
London,  and  that  many  had  been  turned  out  of 
their  employ  monts  withom  so  much  as  being 
suffered  to  make  their  defence.  In  short,  I 
was  at  the  very  same  time  told  by  one  of  Ae 
lieutenancy  of  the  city,  that  bhould  the  duke 
of  Monmouth  give  a  lilow  to  the  king's  forces, 
it  was  much  to  be  feuri-d  there  would  be  an  in- 
surrection in  Ix)ndon." 

^*  A  tew  days  uiierward,  I  dined  with  the 
lord  Clian<!el|(»r,  when;  the  lord  mayor  of  Lon^ 
don  was  a  guest,  and  (»onic  other  gentlemen. 
His  lordship  huriiig,  according  to  custom, 
drank  deep  at  dinner,  called  for  one  Mount- 
fort,  a  gentleman  of  his,  %v-ho  hod  boon  a  co- 
median, an  ex-crl1f  nt  mimic  ;  and  to  tlivcrt  the 
conip'.uiy,  as  he  was  pleaded  to  term  it,  he  made 
him  plead  before  him  in  a  feigned  cause,  during 
whicli  he  aped  all  the  gri^t  lawyers  of  the  age, 
in  their  tone  of  voiee,  and  ia  toeir  action  and 


f  19]         STATE  TRIALS,  32  CuARtES  ll.iGBO.'^PrdeefidiMga  egmuui 


Sheridan,  whose  discharge  by  baron  Weston 
f^re  offence  to  the  House  of  Commons,  appears 
to  have  been  for  breach  of  priFilege,  continued 
in  custody  to  which  he  had  been  previously  com- 
mitted, but  for  what  offence  does  not  distinctly 
appear. 

The  House  of  Commons  on  December  9th, 
1680,  ordered   that  he   should  be  forthwith 
brought  in  the  custody  of  the  Serjeant  at  Arms 
to  the  bar  of  the  House.  This  was  accordingly 
done,  and  he  was  examined  concerning  Dow- 
dd,  the  priest,  Sec,  Afler  which  it  was  ordered, 
that  he  should  continue  in  custody  of  the  Ser- 
jeant at  Arms  during  the  pleasure  of  the  House. 
On  the  next  day,  Friday,  the  10th,  a  report 
was  made  upon  his  papers  and  he  was  again 
examined.    On  Wednesday,  the  I5th,  he  was 
at  his  own  desire  again  admitted  to  the  House 
and  examined. 

On  Thursday  December  30th,  1680,  and 
Ifae  next  day,  the  following  debates  took  place 
i>ft  his  habeas  corpus  : 

On  Mr.  Sheridan's  Habeas  Corpus. 

Mr.  Btttcawcn,  Mr.  Sheridan  stands  com- 
mitted, as  a  judgment  of  the  House,  for 
breach  of  privilege.  It  seems  to  me,  that 
bis  commitment  does  run  on  the  hinge  of 
an  act  of  court  in  a  criminal  cause,  which 
we  may  suppose  in  execution,  where  a  Ha- 
baes  Corpus  does  not  lie,  and  he  is  not  bail- 
aUe,  and  they  will  not  discbarge  him  in  a 
court  of  criimual  causes.  I  tliink  his  com- 
mitment stands  good,  and  you  are  to  consider 
theprivilege  of  the  House  of  Commons. 

The  Speaker,  Give  me  leave  to  ^  state  the 
matter.  The  thing,  in  fact,  Ftunds  thus.  She- 
ridan and  Day  ^vere  committed  by  your  order 
the  ninth  of  December ;  they  were  brought  to 
the  bar  the  same  day,  and  oniered  to  continue 
in  custody  during  the  pleasure  of  the  House, 
and  no  person  to  be  aamitted  to  come  to  him 
unless  it  were  with  necessaries.  Then  that 
order  was  mitigated,  aiid\'ou  ordered  him  to 
be  taken  into  custody.    Then  you  ordered  a 


gesture  of  body,  to  the  very  great  ridicule  not 
only  of  the  lawyers,  but  oi'thc  law  itself,  which, 
to  me,  did  not  seem  altogetlier  so  prudent  in  a 
man  of  his  lolly  station  in  the  law  ;  diverting 
it  certainly  was,  but  prudent  in  the  Lord  High 
Chancellor,  I  shall  never  think  it.'*  *<  To  resume 
the  Lord  Chancellor  once  again,  he  had  now 
like  to  have  died  of  a  fit  of  the  stone,  which  he 
virtuously  brought  upon  himself  by  a  furious 
debauch  of  wine,  at  Mr.  alderman  Duncomb*s  ; 
where  be,  the  Lord  Treasurer,  and  others  drank 
tbcmsclvcs  into  that  height  of  frenzy,  tliat, 
among  friends,  it  was  whispered  they  had 
stripped  into  their  shirts,  and  that,  had  not  an 
ftccioent  pre>  ented  them,  they  had  got  up  on  a 
sign  post,  to  drink  the  king  s  health  ;  which 
was  tne  subject  of  much  (ferision,  to  say  no 
worse." 

Seemore  concerning  him  in  this  Collection 
hi  tboae  Trials  in  which  he  presided  when  Chief 


cominittee  to  ezaniine  him  aiid  Wilaoa. 
act  directs,  *^  That  the  judges,  widdn  i 
time,  grant  a  Habeas  Corpus,  when  6 
and  they  are  required  to  bail  where  d 
gives  that  Uberty."  Now  the  questk 
whether  a  Habeas  Corpus  ties  in  case  of 

!rour  commitments,  tne  parliament  sil 
And  he  reads  the  Act.)  In  the  Act  fa 
qothing  relates  to .  parliament-oonmiti 
The  '«  Head-Court"  IS  the  KmgVBeod 
this  seems  not  to  relate  to  the  pariiament 
is  a  commitment  of  parliament,  and  if  i 
juf  Iges  cannot  grant  a  Habeas  Corpus. 

Serjeant  Majfnard,  You  are  going  u 
sudden  to  give  an  opinion  in  a  thin 
tlioughtof  before.  As  I  take  it,  his  H 
Corpus  is  granted  :  now  what  is  to  be  di 
this  case  ?  J  desire  not  to  be  concluded  ii 
thing  I  shall  now  say,  but  I  will  tell  yoi 
apprehension ;  where  shall  he  go  to  be  t 
but  to  this  House  ?  Your  remedy  for  brei 
your  privilege  is  conunitment,  and  no  i 
can  be  brought  against  either  the  Lor 
Commons.  When  lyou  commit  a  man,  y 
not  always  express  the  cause  ;  if  the  jt 
bail  him,  he  is  gone,  and  there  is  an  a 
him.  I  would  have  this  matter  let  alo» 
to-morrow. 

Serjeant  5/rifiger.  Thisb  a  matter  of  i 
concern.  I  would  consider  whether  a  j 
can  deny  a  Habeas  Corpus.  By  the  act, 
jailor  is  to  pay  the  poialty  of  500/.  upon 
davit  '« That  he  is  refused  the  copy  ol 
commitment."— So  far  a  judge  may  safd] 
But  the  great  pouit  is,  whether  the  judge 
discharge  him.  If  so,  farewell  all  the  p 
leges  of  the  Commons !  When  the  m 
comes  to  a  Habeas  Corpus,  the  judges  ma 
informed  how  he  stands  committed.  ] 
said,  <'  That  this  Sheridan  is  a  second  ( 
man,"  and,  if  so,  let  him  be  hanged  as  he 
I  would  take  time  to  consider  this,  and  I 
lieve  the  opinion  of  this  House  will  go  a  a 
way  witli  the  judges. 

.  Sir  IViliiam  Jonet,  This  matter  is  of  g 
concernment ;  it  concerns  the  privilege 
both  Houses,  and  next,  the  Uberty  of  the  ! 
ject ;  and  1  would  not  have  you  do  any  tl 
in  it  hastily  ;  but  to  appouit  a  coninutte 
consider  it,  will  seem  to  make  the  thing 
difficult ;  but  yet  you  are  not  ready  to  com 
a  resolution  now.  I  must  deny  ^'  that 
judge  must  grant  a  Habeas  Corpus  to 
man."  This  is  not  a  case  at  common-] 
but  you  see  that  sometimes  in  di^rction 
merly  they  required  a  copy  of  the  oomi 
ment  But  by  this  act,  the  judges  gran 
Habeas  Corpus  upon  a  copy  of  tne  conu 
ment.  In  this  case,  the  judge  is  in  no  dan 
upon  refusing  the  Habeas  Corpus.  The  i 
jeantsays  ^^  Sheridan  sent  to  him.  for  a  o 
of  his  commitment,"  and  the  seijeant  has 
granted  it  to  him  ;  so  the  Habeas  Corpus  is 
yet  granted.  If  you  please,  I  wouki  not  com 
thisj  but  adjourn  the  consideration  of  it. '. 

8ur  FrancU  Winninf^ion,  All  I  move  fm 
thisy  «'  That  no  memorial  nor  entry  be  m 


STATE  TRIALS,  32  Ch  arleb  II.  168O.— iLorrf  Chief  Justice  Scroggi.    [224 


TOW boolct for  the  present;"  bat  upon 
'liole  fmne  of  the  act,  1  sec  no  Hal>eas 
M  lies  upon  m  comnntment  of  parliament, 
j.  Maynard,  I  am  clearly  (>f  opinion  that 
( a  cmiiNO  Oiit  of  the  statute  of  Habeas 
u.  That  law  was  nerer  intended  otber- 
han  for  commitment  from  inferior  courts, 
ot  pwliametit.  All  bail  is  in  order  to  trial ; 

an  act  of  parliament  says  "  A  lower 
,"  it  never  intends  a  hither.  A  commit- 
is  not  only  a  judgment  of  this  House,  but 
ecotion :  and  though  the  statute  does  not 
iflo  the  pariiamcnt,  other  courts  shall  not 
; it  in  judgment  and  execution .  There  can 
I  tiki  of  <Hie  committed  from  this  House, 
I  this  place,  and  this  act  is  not  intended  for 
■Imenta  from  hence. 

Frmmcii  Winnin^lon,  It  is  plain  the  par- 
■t  b  not  to  be  mc]ude<l  by  this  act ;  for 
wliament  was  informeil,  that  there  was  a 
sfC^orptis  to  remore  a  man  from  the 
!r,  and  they  sent  him  to  Jersey  w  Gucm- 
Sa  it  plainly  shows  that  it  was  for  the 
ia^  erilfiof  removins^  men  out  of  the  reach 
alwaa  Corpus,  that  this  bill  was  formerly 
[^  in ;  and  that  it  was  never  intended 
■t  oommitnients  of  the  House  of  Com - 
I.  A  man  is  committed  here  in  execution, 
i  was  never  intended  that  injustice  should 
nvra  this  House.  As  Mr.  Slieridan  has 
Md  himiielf  of  bringing  this,  I  could  m  ish 
anld  of  his  other  crimes  also. 
r  nfiMoi  Lee,  Consider  the  advantage  of 
B^thb  qnestion,  movetf  fn»m  the  Imr  by 
a,  vis.  **'  That  no  Habeas  Corpus  does  lie 
If  Aesittinir  of  tliis  Honse.'*  This  court 
■fcrior  Gonrt,  and  no  inferior  jurJs<liction. 
tiitaetf  why  yon  should  make  any  vote  in 
OK.  The  judge  has  the  law  before  him, 
yiv  rote  cannot  aher  it.  You  may  be  prc- 
nibf  fiubjectingvour  vote  to  the  interpre- 
M  mm  flcmnning  or  the  judges, 
r  WilUmm  PuUeney.  In  this  case,  a  vote  is 
■ary,  else  the  judges  will  not  know  what 
aqght  to  do,  and  what  not.  You  have 
L  ^  That  the  judges  cannot  grant  a  H^- 
Carpoa  against  tlie  common  nrivileges  of 
Bonac."  I  woukl  have  the  juuges  take  no- 
ti  it,  and  therefore  I  am  for  a  vote.  I  do 
that  this  House  has  |)ower  to  commit 
K  of  breach  of  privilege,  and  I  would 
it  in  the  vote. 
r.  Ptftt/  FoUy.  I  have  looked  over  the  act, 
m  of  opinion  that  a  Habeas  Corpus  does 
baa  this  case,  and  may  be  refused  in  case 
ba  tequired  by  this  act.  A  Halieas 
never  granted  upon  a  commitment 
fomMTly;  no  precedent  can  be 
mti  it.'  Yon  commit  for  contempt,  and  it 
|flt  is  anch  case*  where  the  party  is  baila- 
*  *^  ima  pot  a  question,  1  would  be  loth  to 

(which  'is  our  only  power) 

in  commitments  upon  impeach- 

we  have  power  to  send  for  all 


Thb  case  b  particular  as  to 
|te»aBd  b  9ul  tf  tht  powtr  of  tb« 


act  of  Habeas  Corpus  ;  and  why  will  you 
make  any  question  upon  it,  upon  general  com« 
mitments  of  tlie  House. 

On  the  latter  of  the  abovcraeniioued  day8| 
his  case  was  thus  spoken  ol*: 

Serjeant  Meynard  supposed  Sheridan  should 
bring  an  action  against  tbe  judge,  if  your  com- 
mitment be  for  breach  of  privUege,  no  inferior 
court  will  iudge  of  it;  but  if  the  commitment 
be  not  tor  bivaeh  of  privilege,  you  may  mend  it. 

Mr.  UarborU,  I  appeid  to  you,  it^erer  you 
discharge  a  man  that  does  not  acknowledge  the 
jinisdiction  of  the  House,  and  acknowledge  his 
fault  ?  Till  he  has  done  so,  let  him  remain  in 
custody. 

The  Speaker,  If  you  should  do  as  Maynard 
moves,  your  order  for  breach  of  privilege  jiB^ 
as  if  after  commitment  they  should  mend  the 
reconi  in  W€*strninster-hall.  Sheridan  was  in 
custody  before  tlie  paper  that  reflected  upon 
your  members,  and  broke  your  privileges,  was 
round.  So  the  first  order  for  commitment  was 
upon  anotlier  occasion. 

Mr.  Paul  Foley.  Though  Sheridan  was  sent 
for  in  custody  to  the  bar,  yet  the  continuation 
of  him  in  custody  was  for  breach  of  privilege. 

Sir  nomas  Lee,  I  would  have  it  considered 
how  you  win  mend  a  commitment  afterwards  ; 
if  he  has  a  copy  of  his  commitment,  general, 
and  now  comes  an  amendment  of  the  commit- 
ment, for  breach  of  privilege,  a  month  after  t 
The  general  debate  ran,  **  That  he  held  a  dan- 
gerous correspondence  with  the  duke  of  Yorir, 
and  was  a  second  Coleman.''  Gentlemen  wera 
sent  to  search  his  papers,  and  found  a  paper  in 
his  closet  not  printed  nor  published.  JPray  let 
the  thing  stand  upon  its  own  foundation,  with- 
out niemling  it. 

Sir  ¥r.  Winnington.  The  famous  case  of 
lord  Shaftsbury,  when  upon  a  commitment  by 
the  Lords  he  was  brought  by  Habeas  Corpus 
to  the  King's-bcnch  bar,  there  was  no  return 
made,  and  he  i^-as  discliarged  udente  Farlio' 
mento.  If  a  rule  of  court  he  ill-entered,  I  ap- 
peal to  you,  if  it  be  not  mended  every  day  m 
an  inferior  court  ? 

Mr.  Fowle,  Whoever,  in  thb  place,  speaks 
for  limitimr  your  power  is  not  so  favourably 
heard,  as  he  that  speaks  to  enlarge  it.  *  State 
*  super  vias  antiquas.*  I  am  Afraid  we  ara 
about  removing  the  ancient  land-marks,  which 
may  return  to  their  old  bounds  again.  Your 
power  is  part  of  the  judicial,  and  part  of  tha 
legislative  authority,  audit  is  but  part  only. 
Anciently  the  judicial  power  of  parliament  was 
exercisea  by  King,  Lords,  and  Commons ;  but 
for  some  ages  past,  we,  and  the  Lords,  by  tacit 
consent,  have  had  a  separate  jurisdiction  in 
that  point,  and  they  punish  for  their  breachea 
of  privilege,  and  we  fervours.  Thb  case  of 
Sheridan,  I  confess,  goes  beyond  jronr  ancient 
privilege ;  they  took  no  jurisdiction  upon  them- 
selves, but  either  did  send  to  the  Lords  if  the 
thing  desen'ed  an  impeachment,  or  dismissed 
it  to  the  law  in  the  lower  courts  at  West- 
uuniter,   I  do  U9i  take  the  words  ia  tha  papar 


993].         STATE  ntlALS,  33  CBAtLisII.l6SI'-A«HiJI(|r^grtMl.        fOt 

fcanl  in  Shnidau's  study,  to  be  >  brtsnA  tit 
pnviltm  amuKt  yoor  memben,  bo  bnring  not 

gildiabed  Uie  paper.    Here  is  nutfaer  actual 
KM  igiiiHt  vour  uanbcn,  nor  Buh*  of  bw. 
ff  the  eouna  (elmr '- —    


r  cumot  reform  your  a. .., 
it  b  fit  jmi  sbonld  do  it  vuuneh-ea.  If  this 
■n  be  Mt  ID  cuitndy  fnroreadi  of  privilege, 
I  maU  rdcue  bim,  ud  M  tiut  are  as  oom* 
■imd,  Hd  rrfbnn  your  own  error. 

Oh  lUdw  Jwuuy  the  Ttb;  166),  tfae 
Bowe  WM  mforond,  dxttawnt  of  tUbeu 
Cwp^  had  been  Greeted  lo  the  Serjeant  of  the 
Home,  to  brio?  lite  bodt  of  Ur.  Ifteridan  to 
]ttr.  Jnitice  Raymond  ■  booie  in  ChBocery 

BIr.  Awrsaien.  Tfae  judge  might  not  hare 
fpMeMfbruhehBBdnne.  It  may  be,  the  Ser- 
jautthadather  priaDnera,  and  your  commit- 
mat  of  Bberidan  ii  not  for  bmcb  of  pTiTil«^. 
HeiaaSn^eaMalAniuithoiwb  heBllciid3i« 
Houh;  aottdoaaaotapjiearbtRthattheSer- 
Jaaat  ta^  bne  Bberidan  m  cunody  upon  ano- 
Atr  wanaat.  I  irotdd  be  careful'to  preaene 
die^rrilegQaf  IheHouieOD  the  one  hand,  a5d 
"        ~  loAeother.    I  woold  hft?e 

e  anaceounl, "  That 
y,  but  that  be  fcnotrc 
■et  that  he  haa  fahn  kgally,  Ike." 


Um  HabMa  CaqniB  OD  Ae  oth 
Ae  Be^eantsire  the  jadse  m 
be  h>i  Sheridan  in  eustody,  1 


Sir  IhmM  Ow^i.  Lord  ^atbdHir*  •«. 
mDutled  by  parijuoent,  and  Ukik  oui  bu  Ha- 
MaConna,  botAejudgeai  had  the  diMteiioa 
ronaiHl  kimi  and  a  Habeas  Corp  iit  dnot 
m,  f^ny,  or  in  execution  ud 
ttc      CoBimilmeMs  of  ^ 


aporiaedafittlheSeQMntuHi}  carr^  tShundaa 
tothejnlg«wMilbeaHiM<CbiB  Cfliiiminnagt. 
Sir  fVaadi  WiuuMgim,  I  take  this  businoi 
tobeworth  yoor  eonidaatHu.  Tke  a^tL 
lord  ShafUniry  la  not  Ah  «aae.  Ttte  mtt 
HafceaaCaqiMwiamdeginGe  that  time.  Oa 
iheothv  hand  it  was  rsreh-  Ibund,  that  ap«- 
I  (an,  ownwitMd  by  either  Uoiue,  has  b««n  atat. 
fbrlytliejudgn.  As  1  would  ditjusiit-etote 
Mabject,  so  I  would  not,  oul  of  MnipIiiuuU,  « 
up  yoMr  privikg^e.  I  wnutd  adjourn  lhi«  ' 
till-ta  BMRvw,  and  go  upon  llut  Linunes: 
day.  I  apeak  not  lor  an  order,  but  h 
Acre  is  a  penalty  in  the  statute,  I  w<iulil  con. 
aider  of  it  tor  the  Seoeaul'a  sake. 

Oi«y  aaya  it  was  a^fouraed  to  the  nrJtl  dty, 
but  he  does  not  make  mention  of  an*  fiiriliaF 
debate  concemiog  it  during  the  cniitinu.iDCw  «f 
that  naiKaniant,  which  was  shortly  aAo-wudi 
diMifred. 


d.£ue 


277.  Proceedings  in  Parliament  against  Edward  Fitzharris,  upon 
an  Impeachment  for  High  Treason :  3S  Chabi,£s  II.  a.  & 
1681.     [Journals  of    both  Houses.     8  Grey's  Debates,  9&S> 

4  Cobb.  Pari.  Hist  1314.] 


HoD9G  OF  CouMONs,  Marrk  U,  1681. 
Sir  GeoTE^  Trcby  aoouaiDtii  the  Hon«e,  That 
he,  together  with  sir  Roucrt  ClaytoD,  htut  takm 
the  ExanuDation  of  Edward  Pitzharna,  relnting 


!flte  Examination  of  Edward  FrrSHUiui, 
lating  to  the  Popiah  Pbt. 
Who  suth,  Thuthe  wBsbom  In  Ireland,  and 
is  the  SOD  of  ^i  E  Jnard  Fitzharris ;  and  thai  he 
was  bred,  and  is,  a  Roman  Catholic  ;  Tlint.  in 
J669,  he  went  first  out  of  Ireland  ;  and  then 
went  into  France,  to  learn  the  hngHBg-e,  as  an 
accomplishment,  being  ttttn  of  the  b^  of  14 

£3an.  In  ISbS  he  returned  tlience,  tlirotu'h 
^  Dgland,  into  Ireland ;  wh»e  he  contiiiDedtill 
tbmii  16C8,  when  )i*  went  to  Prague,  in  order 
toactretbe  emperor  in  hts  war  in  Hungary; 
hut,  there  then  finding  a  peace  cnncluded,  he 
caaie,  by  the  way  of  F&nders,  into  England. 

AadiLea  sb  Georee  Hamilton  bring  about 
JjWi^  a  regiment  of  1,500  tbot  in  liebnd,  for 
«W  French  kine's  service,  thi^  eiaminant  ob- 
^wadftomairGeorgeHauinton  a  commission 
.tt  l>e  caiKaip  oTone  of  the  companies  in  that  re- 
InMntobetaiMdi   wbeteupoa  he  went  ioto 


Ireland,  raised  ttie  company,  and  conducfed 
them  into  Fhuicc :  and ,  soon  atW  his  landing 
thrrc',  he  was  l-eformed,  oiid  iluM-hnrtTud  of  bM 
said  L-ommand :  wlicteupon  lie  wuii  lo  Paris } 
aii<l,  having  but  little  money,  he  lived  thci*  Ht- 
ficuldy  uIkiliI  a  year. 

In  107!,  gomg  ubont  tolakehia  kai«  tf 
Father  Oou^,  an  English  Priest  at  n^  |w 
saithtotfais purpose:  "YonaregoinglbrfiiR 
land  ;  wilbin  thnetwoor  three  yean  youwl 
see  the  catholic  religion  estabtisbMl  tjterp,  asK 
isinPmuce."  Theexaraioant  asking iiim  bow 
that  could  be,  sim«  the  king  was  a  pretei ' 
he  answered;  "  If  the  kine  woidd  not  a 
there  »  B4  orders  taken,  and  thinga  so  lad,  4#i 
lieshonIdbetakenolf,orldUed:  IhatAaJ^B 
vf  York  was  a  catholic;  and,  in  hia  nln,  vHk) 
wonhj  be  no  dilficul^  of  d<ri^  it."  Tkafta^'^ 
minantthen  asking  him,  bow  long  the  diAe 
had  been  a  cathoUc ;  he  aoawemd,  '■  That  (itt 
tiaecn  mother  had  made  him  so."  He  fuithcr 
said,  "  lliBt  the  declaration  of  iudulg«tea  MS  i 
in  order  to  that,  and  of  intmdudng  tlw  vdUft  ■ 
reli^on  in  England :  and  that,  lotlieaaaaaMi 
t&e  war  was  made  againat  HoHaad :  |br4M 
Holland  was  a  nest  of  beretict ;  Md,  tf  *if 
were  dmtroyed,  the  work  wordd  be  eaaSv  AM 
in  England ;  because  the  Eiq;liafa,  «r  Bm^  < 
Pratestants,  he  said,  wonld  then  bava  no  Msi^ 


tmce  ftuB  •broad:"    And   be  aaid,   ' 


STATE  TRIALS,  33  Chahles  II.  \6si.^Edtcard  Fitzharris. 


[226 


came  Q?er  to  Dover  about  this  de- 

camiiianl,  comii^  oyer  about  the  end 
r  1672  ahout  Fcbruar}'  following,  had 
skm  to  be  lieuteuant  of  captain  Sy- 
ooin|Muiy,  in  the  duke  oi'  Albemarle's 

which  waa  then  raisei],  being  one  of 
tents  in  tlie  army,  which  was  the 
following'  mustered  at  Blackheath: 
^,  He  knew  many  of  the  lieutenant- 
uaiors,  captains,  and  officers  of  that 
e  Romau  Catholics, 
terwards,  the  act  passing  to  disable 
ilholics  to  bear  office,  he  and  others 
rere  forced  to  quit  their  commands  : 

That  the  common  intelligence  and 
nong  them  was,  That  that  army  was 
h  a  design  to  brin"^  hi  and  settle  the 
atholic  religion  in  £nglan<l ;  for  which 
ivasion  of  Holland,  and  the  awing  of 
(f  London,  were  fit  means. 
^  measures  tliat  were  thus  taken  being 
V  means  of  the  peace,  and  by  the 
V«>rk*s,  as  weU  as  these,  and  oiher 
inittiog  all  commands ;  and  the  king 
the  expectations  they  had  from  him ; 
in  Catholics,  that  were  engaged  in  this 
?ame  to  a  resolution  to  destroy  the 
'ather  Pkrrcy,  confessor  to  Don  Fran- 
lelo,  the  Portuguese  ambassador,  told 
linantin  1673  ;  and  if  all  other  means 
!  queen  would  procure  the  doing  of  it. 

says,  That  this  Father  used  tlus  con- 
Mranls  him,  because  he  was  well  ac- 
irith  him,  and  used  to  confess  to  him ; 
'athrr  re(ieated  the  same  discourse  to 
e  summer  1678,  with  more  assurance ; 
Rn,  *'  That  the  business  was  now  near, 
laaU  soon  see  it  done." 

iptil  1679,  Blarquis  Montecuculy, 
n  the  duke  of  Moilena,  after  having 
a  to  secrecy,  tokl  him,  that  if  he  would 
e  tlie  killing  the  king,  either  in  his  ohh 
r  hy  any  other,  that  he  should  have 
which  ne  refusing,  the  Marquis  said, 
wiB  not,  tlie  duchess  of  Mazareenc 
ids  poiaonintf'  as  well  as  her  sister  ;  and 
~y  when  toe  king  comes  there,  will 


if  Ezaminant  had  a  great  acquaint - 
>  die  nid  Marquis,  having  first  met 
vbI  times  at  the  duchess  of  York's 
and  aftrrwards  let  him  a  house,  and 
the  ftimiture  therein;  and  has  very 
a,  drank,  and  walked  with  him  :  and 
ps  at  the  same  time  told  him.  That, 
H  the  king,  the  army  in  Flanders, 
I  HBBoent  to  France,  was  to  come  over 
Ind  to  dertroy  the  l^tjtcstant  party  ; 
» levving  in  Italy,  to  recruit 
in  the  place  ot  tliose  that 
over  into  England : 
that  time,  Siere  should  be  uo 
m  England:  and  tliat  the 
was  privy  to  all  these  designs. 

!  U  Ae  «id  rf  FiUhirris's  Trial. 


That,  about  April  1680  he  met  Kelly  the 
Priest ;  who  there,  in  discourse  with  him,  owned, 
That  he  was  one  of  the  persons  concerned  in  the 
murder  of  sir  Edmundbury  Godfrey;  and  that 
the  same  was  done  much  in  the  manner  as 
Prance*  had  related  it. 

lliis  Examinant  hath  known  Kelly  about  12 
years ;  in  part  of  which  time  he  has  had  inti« 
mate  conversation  with  him,  and  hath  some-^ 
times  confessed  to  him. 

That  he  hatli  been  acquainted  6  or  7  years 
with  M.  De  Puy,  a  servant  to  the  duko  of 
York:  and  that,  soon  after  the  murder  of  sir 
Edmundbur\  Godfrey,  this  Do  Puy  told  this 
Exaniinant^That  thai  murder  was  consiUted  at 
Windsor. 

And,  about  the  same  time,  said.  That  tha 
duke  was  vi'ir  desirous  to  come  to  the  crown  $ 
tor  that  the  king  was  imcoiiain,  and  did  not 
kee[)  touch  with  them  :  and  that  De  Puy  said, 
there  was  a  necessity  of  taking  off  the  king  \ 
and  that  it  would  be  soon  done. 

That  the  duke  of  York  having  an  estate  ia 
Ireland,  a  part  of  which  was  this  Examinant's 
father's ;  and  this  Examinant,  bein^  acquainted 
with  Father  BedingHeld,  asked  lum,  now  he 
could  give  absolution  to  tlie  duke,  till  he  had 
made  restitution.  The  Father  said,  **  That 
every  penitent  was  supposed  to  know  his  own 
sins,  and  to  make  them  known  to  his  confess- 
or," To  which  this  Examinant  replying,  with 
some  warmth,  **  But,  since  you  know  it,  you 
ought  to  take  notice  thereof;"  the  Father 
answered,  "  J'e  not  angry ;  for,  ere  it  be  long 
you  may  be  in  a  better  condition.'* 

March  1680,  he  went  to  Paris,  to  compound 
a  debt  he  owed  there,  staying  tliere  about  eight 
days :  Where  meeting  *FaUier  Patrick,  who 
well  knew  this  Examinant*s  father  and  friends, 
and  this  Examinant  talking  of  a  rupture  that 
might  be  between  England  and  France;  he 
said,  **  The  French  intended  in  such  c»se,  to 
send  Marshal  Belfonds  into  Ireland  with  an 
army  of  10,000  foot,  and  ^,000  horse,  with 
arms  and  ammunition  for  30,000  men  more,  to 
be  raised  in  Ireland  :"  and  the  Father  promised 
this  Examinant  a  regiment  of  the  men  so  to 
be  raised  and  armed  in  Ireland  :  and  the  design 
was,  to  restore  that  kingilom  to  its  former 
owners,  subject  to  the  French. 

He  also  desired  him  to  send  him  all  the  libels 
that  came  out  in  London :  and  said,  **  That 
libelling  the  king,  and  the  government,  was  a 
thing  necessary  to  be  done,  m  order  to  distaste 
the  king,  and  make  him  afraid  and  jealous  of 
hispeoplc." 

That  he  knew  Mr.  Everard  at  Paris  in  1665  ; 
and  hath  siince  continueil  and  increased  his  ac« 
ouaintance  with  him  ;  that  the  opinion  of  Fa- 
ttier Patrick  was  an  encouragement  to  him  to 
correspond  and  concur  with  Air.  Everard,  at 
to  the  libel  lately  written  by  Mr.  Everard. 
Capt*  10  Martii,  1681,  coram  Rob.  Clayton^ 
Geo.  Treby. 

*  As  to  this  man,  see  vol,  7,  pp.  157,  VV8,  of 
this  Collection. 

Q 


K7]         STATE  TRIALS,  33  Charles  II.  iSsi.^ProceedipgM  against 
As  soon  as  the  ExamiDation  was  read, 


[i28 


Sir  John  Hat  lop  moved  that  it  might  be  print- 
ed, to  shew  the  \^'orld  the  devilish  conspiracies 
of  the  papists. 

Sir  Wiiiiam  Jones.  I  like  the  motion  well. 
There  is  nothing  in  this  paper,  but  what 
is  fit  to  be  printed ;  and  what  fully  makes 
out  what  ^e  have  heard  before,  and  be- 
cause we  all  know,  that,  since  lord  Stafford's 
Trial,  people  have  been  preavailed  upon  to 
bdieve  the  plot  not  true.  Tliis  paper  confirms 
Oates's,  Bedlow's,  and  Prance's  intormations ; 
but  I  would  not  have  that  ]iapef  printed  which 
reflects  upon  the  kins;. 

Mr.  Secretary  Jenkins.  I  will  not  trouble 
you,  but  with  what  i>art  1  hail  in  this  affair. 


master,  in  the  character  I  bear  under  him ;  ad 
I  will  not  go  on  the  message.* 
A  great  cry,  **  To  the  bar,  to  the  bar." 
Sir  ThonioM  Lee.    I  would  not  hmve  said  one 
word,  but  that  the  very  being  of  the  pn&p 
ment  is  in  the  case.     Itistt»  uo  end  to  sit  here 
any  longer,  if  ^his  be  suffered.    Jenkiiis  had 
no  ground  or  reason  to  bring  the  lung's  maMi 
in  (piestion,  nor  was  there  any  reflection  upon 
his  majesty,  or  Jenkins,  in  sending  bim  imk 
the  impeachment.      But,  for  Jenkms  to  «y, 
"  Do  what  you  will  with  me,  I  will  not  gs 
with  the  message  *.*'  Let  his  words  be  flnt  m* 
serted,  and  read  to  vou,  before  he  explain  tha/ff 
according  to  the  order  of  the  House. 

Sir  George  Hunger  ford.  I  never  fanrd  miA 
words  uttered  in  parliament  before,  **  That  Ikt 


The  scandalous  |iaper  reflecting  upon  the  king    whole  House  of  Commons  should  reflect  vpfli 
was   read   over  to   his  majesty  oy  ^Valler ;    the  king  in  sending  him  with  the  metngc^" 


whereupon  I  issued  out  wan'anLs  to  apprehend 
Fitzharris,  !kc.  and  ^\'allcr  saw  the  execution 
of  them. 

Sir  F.  irinn<fi/?{un.  This  is  of  great  import- 
ance, and  in  it  we  oui>;lit  to  acquit  ourselves 
like  wise  men.  We,  that  come  out  of  the 
country,  hear  that  the  treasonable  paper  should 
have  llieen  sent  to  many  gentlemen,  and  then 
they  should  have  been  seized  ajton  as  traitors 
in  the  conspiracy  in  tills  plot.  All  is  now  at 
stake  ;  therefore  how  lung  or  short  a  time  we 
are  tn  sit  here,  (the  tniojUT,  Harrison,  that  was 
seized,  said,  *■'  \\'e  should  have  other  guards 
at  Oxl'nrd  than  ^ve  hail  al  "Westminster,")  let 


and  ^*  that  he  will  not  obey  your  coniiiiaiiB." 
Pray  call  him  to  the  bar. 

At  which  there  was  a  loud  cry,  ^*  To  tfie  btfr 
&c.'' 

Mr.  Trenchard.  The  House  will  grow  eoo- 
temptible  to  the  extreniest  degree,  al  this  nie. 
Such  a  thing  was  never  before  in  puiouneBl; 

*  1  bishop  Burnet  ^vcs  the  following  chlF 
ractor  of  hiin :  ""•  Jenkins,  now  made  Secielaij 
of  Stale,  was  the  chief  manager  for  the  eonit, 
apiinst  tlie  Bill  of  Exclusion  :  he  was  a  mM 
of  .111  e\oii!p)nry  lit'o,  and  considerably  leaned; 
but  Ik  wii^  (lull  ;.nd  slow :  he  was  suspected  of 
not  o;ii-  coiiraifr-  lessen.     Tlii«;  heinij  our  case,    leaikinij  to  popt-ry,  thousrh  very  unjustly  ;  Iwl 


\k  t  IKS  t>o  to  rlie  holtnni  of  this  bns'uiess  of  Fitz- 
hurris.  It  lias  hoeii  movrd,  "  Thot  he  should 
Ixj  sen  tor  hither;"  but  we  have  exucTiHue, 
thui.  ulu  n  ouco  an  aceusation  in  parhaiiK'nt  is 
ni;aiii>t  a  ma^i  upon  record,  and  in  the  greatcrsi 
roiirl  in  the  kingdom  made  known,  mnlefactnrs 
h.ivr  nut  l>i  I'U  cleared,  and  have  not  had  Justice; 
ihcrefore  I  niovo,  *•  That  vou  will  take  care 


p.  3r'2,  there  is  a  l-^lt-.T  from  sir  liColine  Jen- 
kins, dated  the  Jl'.t  of  Marrh,  lodo,  in  which 
lliM  t:ii»»  ni.'iri  1»r  itnpeaeheif  of  hiifh-trta-son,"    is  the  l'«illt»\*iriij;irconnt  (^f  himself :  "  His  ma* 
and,  it  ni.n  be.  then  he  ^t  ill  toll  you  all.  '  jt^sty  hu*h,  up'ni  my  mdst  humble  and  eraJ 

im{H  rtnnate  suit,  u'i^  t'"n  m(r  leave  in  regard  of 


he  wps  5i'i  oii  euTV  iiunetilio  of  the  Church  of 
Eniiflaml  lo  siipcrstitK.n  ;  and  was  a  great  as- 
serlor  of  tlio  \\\\  ino  ri;;"ht  of  monarchy,  and  ww 
frr  rarrvincf  the  j'r«^r>ti;^ilive  high :  he  neitha 
S|K»ki.  i'«»r  v.Tote  wi  II."  Historj'  of  his  Om 
Times,  vo!.  1,  ii. 4 f.l.— In  BidstrTKie'sMemoin, 


Sir  1x0*1.  C  fay  for*.    When  Mr.  Heeorder  and 
mvself  examined   Fiizharris  in   >ew^l^\te,  he 
asked 
sav 
not 

counse 
trea: 
w 

and 

next  day  ut'ier  he   |  lomivti  he  wtmld,  \\v  uas 
vemoveil  out  ofoiu*  i«'aeii  lo  tht*  T*»wer. 

Onltriil.  ••  Tlu-^t  ibc   v.iiJ   Kxauiinaiiun  be 
fbltiiwitli  printtd.'* 


ly  iu\;!;]i,  ii>  n-.-ii;*!!  niv  iv.>sl  of  ^t»cix*tar}',  and 
ath  lit.'^eil  it  uimn  my.  Godohthin.    Ml 


mv 

h 


I 


mallei*  iun  oiisirui'lim.".  {h*'\  can  invent,  npot 
an  ivicidiHt  ut  c^r.rt.'*— Ipen  this,  Mr.  HatseO 
obsorv'.^^,  *■  W  1»  -.'vor  iviM  n-eollii't  the  proceed- 
ij»U^s,  f;ml\vi.ro  p-iv-iT  ^'i^  at  I  hi"?  period,  with 


stateman,  w'„)A\as  rrijiul  hi?  should  be  sns- 
Secretarv  JtfM.\.*;;.  Tii»  sending  me  up  with  |)ecied  of  iviiiiny  iV'im  oriiv,  from  dLsliki^S 
"'"  iiupMchmritt  retlccts  up'^a  hiisiuajeNly,  luy    the  prcsy:;ut  luciiuus  of  the  court." 

i 


STATE  TRIAT^,  33  Charles  II.  \6l\.^Edward  Fiizharrit. 


[230 


the  whole  House  should  reflect  upon 
','*  and  for  bim  tosav,  *"  Do  what  ^ou 
I  ine,  I  will  not  t^." 
tary  Jenkini,  1  said  no  sucli  thing', 
Jie  Hoase  reflected  on  thi^  Kia^,"  but 
[  take  it  as  a  reflection  u|M>n  the  king-, 
ter." 

ords  were  thus  stated,  *^  This  mcssa^re 
been  put  opou  nie  but  for  tlic  character 
I  value  not  my  Hie  ur  liberty  ;  do  what 
with  uie,  I  will  not  eo,^^ 
mry  Jenkim,  I  said  *^  That  this  is 
n  me,  to  my  apprehension,  fur  the 
r  I  bear ;  and  do  what  you  will  with 
ill  not  go." 

Janti,  I  am  sorr^'  to  see  any  member 
dmself  at  tliis  rate.  This  confirms  me 
union  of  the  dc^ig^n  some  men  have  to 
he  honour  ufSliis  House.  A  book  has 
itien  by  a  member  of  tliis  House** 
in  time,  I  hope  3'ou  will  consider  of) 
ihe  House  ot  Coiumons,  in  Hon.  S.'s 
runff  out  of  rebellion.''  This  g^*s  on 
in  the  mme  method.  \jc\  a  man  he  of 
dity  he  will,  if  he  be  too  bi^i^  to  carry 
ssa^,  he  is  too  big  to  be  your  mem- 
not  fit  to  be  chosen  fur  one.  Tlius  to 
e  commands  of  the  House,  and  to  be 
or  a  messenger  of  the  House  of  Coni- 
iecretaries  are  sent  on  messages  every 
i  ia  hr  too  big  for  ihl«,  to  accuse  a 
fthe  Popish  Pkit?  If  this  be  so,  sit  no 
kens  but  go  home.  His  character  is 
lit  lie  nuky  be  privy  to  things  hid  from 
ibly,  by  this  extraordinary  carriage, 
ic  Co  that  i»ass,  for  us  to  be  dealt  with- 
ne  of  our  predecessors  ever  were  bc- 
f  my  brother,  or  sou,  dealt  with  the 
bos,  I  would  have  hini  made  an  ex- 

and,  for  aught   I  see,  Jie  provokes 
leby  Ills  explanation;   theref(>re  pray 

tary  J*  nkin$.  I  am  ready,  and  I  think 
u  much  obliged  as  any  man,  to  obey 
inaiids  of  the  Ifouse.  iThe  office  I  have 
IS  majesty  excludes  me  not ;  but  the 
stand  upon  is.  That  tbe  motion  was 
on  in  riilicule.  I  have  an  honuur  fur 
il  ever  have  had  for  all  Houses  of 
DS,  but  in  this  message  1  must  and  will 
Mid. 

enry  CapeL  **  Ritlicule"  is  not  a  word 
iir  a  Houseof  Commons  :  wluitlsap- 
by  tliem  iswitli  all  gra\ity,  especially 
ae  life  of  a  man  is  confcmed,  as  it  is  in 
■chment.  We  are  in  an  unibrtunate 
nr  things  come  to  light,  moi-e  than  we 
bic ;  that  now  it  must  be  said,  **  Im- 
■ii  of  treason  strike  at  the  king,"  and 
lof  cxduduig  the  duke,  >cc.  islevelhHl 
pg^**  I  am  sorrv  it  is  said  here,  as  well 
hv  places.  This  that  we  put  upon 
■  Ml  employment  for  the  king's  ser- 
i  he  tdla  us,  *'  It  reflects  upon  tlie 


sa 


ly,  who  served  for  the  Uuif  ersity 


king,  and  he  will  not  ^."  All  the  Commons 
do  wiU  be  reversed,  it  this  must  pass  for  doc- 
tiine,  '*  That  wlmt  we  do  reflects  upon  tlie 
king.*'  But,  Sir,  we  are  in  a  ship,  and  we 
have  to  do  with  the  master,  and  he  with  us. 
If  tliis  gentleman  would  make  any  sort  of  ex- 
cuse for  himself,  I  would,  for  my  share,  pass  it 
by  ;  but  he  has  not  taken  it  off,  but  rather  ag- 
gravated it.  If  he  has  nothing  farther  to  say 
for  himself,  he  must  withdraw,  and  then  I 
shall  make  a  motion,  fur  the  honour  of  the 
House. 

Sir  Thomas  Meres.  I  know  no  difference  of 
any  persons  here  ;  if  Jenkins  said  **  I  thought 
sending  me  with  the  impenchnient  reflected  un 
tlie  king  ;  and  in  case  it  be  so,  1  will  suffer  any 
thing  under  that  reflection,"  a  man  may  be 
mistaken  in  his  thoughts :  but,  as  I  take  it,  he 
said  '*  It  was  his  tlioughts  that  the  message 
was  a  reflection  upon  tlie  king,  and  ia  that  case 
he  wouhl  suffer  any  thing  rather  than  a  refleir- 


stumble  at  the  entrance.  1  do  hojie  tluit  Jen- 
kins intended  no  disser\ice  to  the  House,  in 
wliAt  he  said,  hut  on  a  jM*rfi*ct  mistake.  I  did 
apprehend,  and  so  did  some  otliei-s,  that  he  was 
|iut  upon  it,  by  the  gentleman  that  moved  it, 
mjest(Mr.  Coningsby.)  But  be  it  in  jest,  or 
in  earnest,  he  ouglit  to  obey  your  order ;  but 
every  man  cannot  subdue  his  own  heart.  But 
I  would  know  of  Jenkins,  whether,  upon  far- 
ther consideration,  he  will  undeilake  this  ser- 
vice, or  no  ?  1  am  the  worst  advocrate  in  the 
world  for  an  obstinate  (lersou ;  but  1  humbly 
ofier  it  to  your  considenUion  to  put  the  gentle- 
man upon  it,  whctlier  he  will  go,  or  no,  before 
he  witiidraw. 

Secretary  Jenkinn.  Since  the  House  is  so 
favourable  as  to  hear  me,  I  must  say  1  did  ap- 
prehend it  a  reflection  upon  the  lling,  which 
was  the  reason  why  I  refused  the  message  : 
but  if  I  apprehended  it  a  reflection  upon  tlie 
king  my  master,  1  am  heartily  sorry  1  should 
incur  the  di.sideasure  o\'  the  House,  and  I  hope 
you  will  pardon  the  freedom  of  the  expression, 
of  reflection  upon  the  king.  I  had  no  other 
consideration  whatsoever  that  induced  me  to 
say  the  words. 

*Mr.  Fleetwood,  I  look  upon  this  as  so  great 
a  reflection  upon  the  House,  from  this  genile- 
maii,  that  he  ought  to  come  u|ion  his  knei's,  at 
the  bar,  to  ask  pardon. 

Mr.  Biucuuen.  We  are  all  subject  to  infirm i« 
ties.  Seeing  the  thiiiif  is  so,  Jenkins  could  not 
apprehend  any  reflinniun  ui>ou  the  kuig  in  the 
message,  but  he  ii light  ujion  hiiusell.  The 
thing  was  a  little  smilingly  iiio\e«l  ;  but  since 
he  has  explained  hiiiiseh,  I  would  have  tliis 
passed  by,  as  1  shoultl  di'sire  for  m^  self,  iijnmi 
the  like  occasion. 

LdtniCuvendtth.  The  gentleman's  foiilt  is  a 
great  one  ;  but  after  he  luis  now  beggixi  ihe 
pardon  of  the  House,  and  that  he  is  read}  to 
olM'y  the  Onler  (d  (he  House,  1  am  Milhng  to 
pass  it  o\iT.     Though  it  be  a  great  fauh,  yet 


C3il         STATE  TRIALS.  33  Charles  11.  xesu-^Proceedingi  egmmit         [039 


it  U  too  little  to  give  occasion  for  a  breach,  at 
ill  is  time. 

Secretarv  Jenkins.  I  am  ready  to  obey  the 
orders  of  tnc  H<)iL<;e,  I  am  verj'*sorrv  that  the 
words  which  fell  from  me,  gave  ite  House 
ofFenco. 

And  so  the  thing  passed  over,  and  he  carried 
the  message. 

C'olonrl   Bi'ch.    For  the  discovery  of  this 


may  indict  at  his  suit,  or  the  heir  or  the  nift 
of  Uie  party  murdered  may  bring  an  apped  f 
and  the  king  cannot  release  that  appeal,  nor 
his  indictment  prevent  the  proceeiUii|[a  in  tht 
appeal,  hei*ause  the  appeal  is  the  suit  of  thfe 
party,  aiid  he  hatli  an  mterest  in  it. 

*''lt  is,  as  we  conceive,  an  abaolute  denial  flf 
justice,  in  regard  (as  it  is  said  before)  the  m 
suit  can  be  tried  uo  where  else.    The  Hi 


Plot  of  Fitzharris  wc  (Mi<rht  all  to  'give  God  |  of  Peers,  as  to  impeacliments,  proceed  bf 
thanks,  next  to  the  discrnciy  of  the  Popish  i  virtue  of  their  judicial  power,  and  nntbythor 
Plot.  This  is  a  ;;TC'at  M-rM<*i'  to  the  nation,  \  legislative;  and  as  to  that,  act  as  n  Court  of 
and  it  is  not  ilie  lust  sen- ice  ihnt  sir  William  i  Record,  and  can  deny  suitors  (especially  tki 
Waller  has  (lonr  the  until 'M.  Ifeverthetlianks  '  Commons  of  Englanrf)  that  brimf  le^ 
of  the  House  w(>i*e  <tesiT\(Ht,  it  is  for  this  dis-  I  plaints  before  tliiMu,  no  more  than  Uieji 


covcry  ;   theivtiir   I  in«i\e,    '•  That  be  may     of  Westminster  Hall,  or  otiier  courts  can  daj 
have  the  thanks  of  the  Houv/*  '      any  suit,  or  criminal  cause,  that  is  regnWy 

HI  ^f      I  ^^  coimnence«l  before  tliem. 

..ISE  OF  LOKU-S   Mara,  W.  ..  q^^  ,^^.  ^j,,,^  ;„  ^   j,,,^  «f  Ae  BHi 

A  Message  was  bron;;^ht  frf»ni  the  House  of    "  Nulli  negabimus  justitiam,'   We  will  doij 
Commons,  by  sir  Li^i! in  Jenkins  and  others,  in    justice  to  no  single  person  :  yet  here,  as  weap-    . 
these  words  :  **  The  Commons  of  England,  as-  !  prebend,  justice  is  denied  to  the  whole  bsdy  if    '■. 
semliled  in  parliament,  having  nTfiveil  infitr-  I  the  people. 

mation  of  divers  traiterous  ]iraetices  and  designs  I  '*  And  this  may  he  interpreted  an  enramg  ' 
of  Kihvard  Fitzharris,  have  commanded  me  to  |  of  an  arbitrary  power,  and  will,  as  we  ftVi  \ 
impeach  the  <?aid  Edwnnl  Fit/hanis  of  high  i  have  influenee  upon  the  constitution  of  III  ! 
treason  :  and  I  do  here,  in  their  names,  and  in  ;  English  gnvemnient,  and  be  an  encourage  not  ' 
the  names  of  all  the  CcMnmons  of  England,  '  to  all  inferior  courts  to  exercise  the  same  w^  \ 
impeach  Edwanl  Fitzharris  of  high  treason.  '  trary  jwwer.  Iiy  denying  the  prescntamti  if 
They  have  further  conniiundi-d  me  to  acquaint  grand  juries,  \*e. ;  for  which,  at  this  time,  ttl 
your  lordships,  that  they  will,  within  i*onve-  chief  justice  stands  impeached  in  the  House  of  ; 
iiient  time,  exhibit  to  youV  lordships  tlie  .\rtieles     Peero. 

of  charge  against  hini.'*  !       **  This    proct?cding   may  misrepresent  tie 

Mr.  Attorney  General  g;ive  the  House  an  Honse  of  Ivm-s  xn  ihc  kiiig  and  people,  eep^ 
ocoountof  the  Kxauunaiim'is  taken  against  Ed-  |  cially  at  this  time  ;  and  the  more  m  the  pvti- 
wanl  Fitzharris  ;  and  said  '*  He  had  an  onler  '  cnlar  east-  oi'  Edward  Fitzharris,  who  is  pok- 
ot'the  king's  dolinl  tlie  0th  of  ^lareh  instant,  liely  known  to  hv  concerned  in  vile  and  boirii 
to  prosecute  the  said  Fitzharris  at  law;  and  treasons  agaiii<t  his  majesty,  and  agreatCQS- 
accoi*diiigly  he  hath  prepared  an  indictment  spiratnr  in  the  PopUh  Plot,  to  murder  the  kinSi 
against  him  at  law.''  ■  and  des1ri>y  and  siih\ert  the   1^-otestant  reb* 

And,  ai^er  a  Ion<;  debate,  the  question  was  ;  pfion.  Kent,  >>hafi(*shiiry.  Macclesfield,  Hc^ 
put,  "Whether  Edward  Fitzharris  shall  l»e  '  hert,  noilfonl,  Stumfon!,'Westmi>reland,  Sali^ 
procectled  with  according  to  the  coursi*  of  the  bury,  Paget,  Cornwall  is.  Huntingdon,  Ciaif^ 
Common  law,  and  not  by  way  of  im|H'achment  Sunderlan<l,  Essex,  Crei\e,  P.  Wharton,  JUo^ 
in  parliament,  at  this  time?'*  It  was  re8ohi>d  ■  daunt,  Grey,  IMonmouth,  J.  Lovrlace." 
in  the  afhrmative.  '  it  ,#-.  ir      r-^ 

jlemc'randum.  That  iK'lore  the  puttmtT  the  '  »  # 

above  qiie^lion,  leave  was  asked  for  entering  '  [Debate  in  the  Commons  on  the  Lords  re- 
Pn>iestniions  ;  which  was  granted.  fusuig    to    proceed    u{hm    the   Impeacbmest 

*'  Ditsentientibui  ;  ISeeauso  that  in  all  ages  against  Edwani  Fitzharris,  and  directing  tfait 
it  hath  l»een  an  imdoubted  ritrht  of  the  Coin-  he  should  be  proceeiled  against  at  commoB 
mons  to  impeach  Mt>re  the  Lonls  any  subject.     law.]t 

for  treasons  or  any  crime  i*hatsiH»ver ";  and  the ■ • — — 

reason  is,  because  great  oHTem^es  that  inHueiue  •  'M\  hich  u as  always  to !»e  preferred ;  isd 
the  govemmeut  are  most  eii'ectuully  detenu  iuL-d  ,  Ujioii  notict-  thtreof,  all  i-nseeutions  at  tbe 
in  parliament.  '  •  kind's  sui:  \*tiv  to  stop,  till  the  pntsecution  it 

»•  We  cannot  rtjeet  the  Iinpeaehment  of  the  the  stiii  t>f  the  party  was  deteruiined.'*  Note 
Ci'-mmons,  luxoause  tliat  suit  or  complaint  ran     to  ioriAir  ciiiti«»n. 

he  determined  no  where  eKe:  for  if  the  part\  \  +  '•  The  C-n mioiis"  Impeaehmeni  againl 
impeached  should  be  indicted  in  the  Kind's  '  ri'./hr.rris  \*aH  r^ive!^J  h\  the  Li>nU  u^t 
I^iu^b,  or  in  any  other  court,  for  the  same  '  prct  .ui.vvii!!  uhii'li  |,.i  I  Nottiny^hamfwruishid 
oHeiTjPe,  yet  It  IS  not  the  sauie  suit  ;  for  an  iui-  in.  .n,  li  was  tIt's  :  IMwani  5  hati  unt  souic 
peactiment  IS  atthe  suit  of  the  people,  and  th»:\  Ci '.Mi'r.rs  ■  tlie  si\  miirdt^-rs  of  Edward  2] 
ftave  uinterest  ?n  it.  But  an  indictment  is  io  I..  .  ..:,.i.  uinetl  h\  i].e  UntU,  of  which  whea 
(DC  suKot  the  kmg:  for  one  and  tin-  sanit-     th.-  il,Mis=M»f  Cr.iimu»n<  eomi^l'MiiTHl,   an  ordff 

o2I^^*^"       .'**"'**  t^'"^""'*  *'^   ■^^^^"*^'     ^^-^^  »'»'^*'**'  '•'*'''''*^   '*"  ^"^'^  *'''"4»'  shouW  be 
«iUB,  IS  a  amunkr  be  coiamiiieil,  the  kjiu;  :  d  -jc  for  ib.^  futi-ii.  '     No-v  ilut  related  onlj 


STATE  TRIALS,  33  Charles  II.  l6si. -^Edward  FiizharrU. 


[234 


Lte.  I  see  ^lot  what  farther  use 
ifm  pwfiament,  ii*  the  House  of  Peers 
Cooft,  and  not  a  Court,  to  serve  a  pre- 


iUttmJomes.  In  a  matter  so  very  plain 
pieaous,  as  the  refusal  of  this  ioipearh- 
the  LMth,  I  am  unwilHiij;^  to  make 
ary  doafats.  If  indeixl  an  inferior  court 
eeoed  to  judgment  in  this  matter  of 
s,thcn  it  mig^ht  have  been  pleaded  in 
Ht  tbe  impeachment  of  the  Commons. 
M  an  indictment  asrainst  the  Lords  in 


impeacli 

ot  Fitzharris,  here  is  no  indict- 

pTOaecution   begun  in   any  inferior 
law.     We  have  a  prece<lent  fresh  in 

of  the  impeachment  of  a  commoner 
nblMir,  if  tneliords  doubt  that,  which 
IT  lord  chief  justice  Scroj^gs  ;  so  that 
not  spend  our  time  to  search  for  pre- 
o  mamtain  our  right  at  a  conference 
I>iHs.  Perhaps  the  Lords  Jounials 
*«(  made  up  into  tbrm  ;  but  sftme  mem- 
a  taken  notes  out  of  their  minutes,  and 
the  Lords  have  dismissed  the  impeach - 
ftinst  Fitzharris,  and  lelt  him  to  trial  at 

laWy  and  have  ordered  it  so  by  the 
■  spiritmU"  as  well  as  '*  temitoral ;" 
lis  case  they  have  determined  a  great 
That  the  Lords  spiritual  have  power 
in  an  impeachment  of  capital  matters," 
« never  own,  nor  ever  shall,  and  here 
Aenied  justice  by  those  who  have  no 
▼ole  it.  In  tliut  the  Lords  have  done 
le  act  of  injustice.  Seeing  then  that 
Is  hare  taken  U|>on  them  to  throw  out 
Mschment,  Vc.  let  us  assert  and  declare 
Mif  impeaching  in  oai>ital  causes,  and 
iLsnls  have  denied  us  justice  in  refus- 
JMeachment  a;^inst  Fitzharris ;  and 
Kf  baviu^  assprtt-d  our  jirivilcge,  let  us 
p  our  reasons  to  luaintatn  it,  and  make 
4  our  Conf(Tenre  to  show  the  Iy>nls, 
reasonable  the  Lords  actions  have  been 
proceedings. 

eedings  at  the  king's  suit ;  but  it  could 
mrant,  that  an  Impeachment  from  the 
4BS  did  not  lie  against  a  Commoner. 
I,  secretaries  of  state,  and  the  Lord 
r  were  often  Commoners.  So  if  this  was 
IV,  here  was  a  certain  method  offered  to 
Mrt,  to  be  troubled  no  mure  with  im- 
■o^  by  employing  only  commoners. 
M,  the  Peers  saw'the  dcsi;|jii  of  this  Im- 
•ad  were  resolved  not  to  receive  it, 
use  of  this  colour  tu  reject  it." 

ii  occasion  a  protest,  with  reasons, 
M  for  the  first  time,  signed  by  the 
hmsuth,  and  18  other  Lords,  which, 
^1  of  the  Press,  for  which  it  was  ori- 
Islitedk  became  the  subject  matter 
taMraveny  all  orer  ihe  kingdom." 


Sir  JFV.  Winnington.  If  this  refusal  of  the 
LdMs  was  an  ordinary  Impeachment  of  mono- 
polies, or  the  like,  1  should  not  press  you  in  the 
matter ;  but  this  is  not  an  onUnary  considera- 
tion, but  that  which  relates  to  our  religion  and 
proiM;rty;  and  how  the  bishops  come  in  to  stifie 
this  imoeachment  let  God  and  the  word  judge! 
I  would  know  if  there  be  an  ini]K?acbment 
against  a  man  from  the  Conmions,  and  no  in- 
dictment ui)on  record  against  him  in  the  courts 
below,  only  the  attorney  general  told  the  Lords, 
that  the  king  gave  him  directions  to  prosecute 
Fitzharris,  and  there  is  no  record  against  him. 
If  the  Lortls  vote,  »«  That  the  House  of  Com- 
mons shall  not  impeach  this  man ,"  they  may  as 
well  vote,  that  we  shal'.  not  be  Protestants. 
But  yet  we  will  be  Protestants.  I  take  this  to 
be  a  new  Plot  against  the  Protestant  religion, 
and  we  impeach  this  roan,  and  the  Lords  mirly 
say,  "  We  will  not  hear  it."  If  this  be  the 
case,  I  desire  you  will  come  to  some  vote.  You 
are  willing  to  discover  tliis  Plot  if  vou  ooukl.  If 
the  attorney-general  had  preparecftlie  prosecu- 
tion of  Fitzharris,  and,  as  Jones  said,  ir  the  in- 
terior coiuts  had  proceeded  to  judgment  against 
him,  then  that  judgment  is  pleaded  in  bar 
against  an  impeachment.  But  if  our  time  be 
short  to  be  here  (as  1  believe  it  is^  ]H'ay  do  not 
delav  discharging  your  part  in  this  matter.  If 
the  house  be  satisfied  in  it,  nray  make  a  vote, 
to  assert  your  own  right.  A  little  while  ago,  wo 
knew,  that  the  judges  of  the  King's-liench  dis* 
charged  the  grand  jury  whilst  the  indictment 
against  the  duke  of  i'ork,  for  a  popish  recu- 
sant, was  dej>ending :  This  proceedmg  of  the 
Lords,  in  rejecting  the  intiieachment  of  Fitz- 
harris, seems  as  if  the  House  of  Lords  intended 
to  justify  tliat  procee<ling  of  the  judges  by  their 
own.  It  is  a  jit  it  reflection  of  weakness  to  doubt 
in  a  plain  matter.  If  no  gentleman  doubts  of 
our  right  of  impeaching,  pray  vote  it  so. 

Sir  Robert  Hnicnrd.  I  am  glad  we  arc  off 
fn»m  one  great  thing,  vi-^.  "  the  exclusion  of 
the  duke  of  York  from  the  succession  of  the 
crown  as  the  best  means  to  preserve  the  Pro- 
testant religion."  1  cannot  believe  but  that,  in 
this  matter  of  rejecting  the  impeachment  of 
Fitzliarris,  the  lionls  have  cause  for  what  they 
do.  In  this  matter,  precedents  you  need  not 
search ;  you  have  instances  of  very  late  date : 
But  this  of  Fitzharris  seems  to  me  to  be  a  more 
dangerous  breath  than  usual,  a  breath  fit  to  be 
stiiL^.  Th^  is  something  in  this  more  than 
ordinary.  If  this  be  a  sacred  respect  ib  the 
Lords  to  the  common  trials  of  England  by  jiuies 
in  the  inferior  courts,  it  is  stranee  that,  in  the 
case  of  Skinner,  the  Lonis  should  contend  with 
the  Commons  about  the  trial  of  it,  though  an 
original  cause.  This  refusal  of  the  Lords  seems 
to  nie  to  be  no  great  value  of  the  law  of  Kng- 
land,  but  a  value  of  Fitzharris  to  keep  him 
fn»ni  us.  When  1  have  seen,  in  all  the  speeches 
to-day  relating  to  the  duke's  exclusion,  that  the 
duke  goes  not  single,  but  all  along  associated 
with  popery.  1  have  heard  such  excellent  dis- 
oonrses  to  day  of  that  matter,  tliat  I  am  loth  to 
oiingle  my  weakness  with  thens  ;  but  these  are 


235]         STAT£ TRIALS,  33  Charles  II.  iSSl.'-Proceedingt  ttgainU 


such  counsels  from  the  Lords,  that  I  believe 
hereafter  the  king  will  have  no  cause  to  thiink 
the  Lords,  oi*  those  that  were  the  orio^nals  for 
invoWini;  him  in  the  fatality  of  them.  They 
will  make  the  traitrroiis  libel  of  Fitzliarris  the 
copy  of  their  counsels.  Dannferficld  was  a  ' 
man  reputed  most  inruinous,  yet  if  he  would  ' 
discovf:r  what  hu  k.iew  »»f  that*  sham  Fresby-  j 
tertan  Plot,  nothiri|r  of  mercy  was  too  hig  for  i 
him  :  but  Fitzharris,  a  man  of  no  iiifatnv,  must  ■ 
be  hurried  away  from  Newgate  to  the  Tower,  | 
when  he  was  disposed  t<»  cfin'.ess  the  whole  Plot 
to  those  gentlemen  uho  examined  hini.  Are 
you  so  lost,  that  there  is  no  mercry  left  for  the 
Protestant  relicfion  ?  If  the  terror  of  his  con- 
dition incline  him  to  iliscovnr  n!l,  iru.4  he  now 
be  taken  out  of  our  hands  i*  U'e  hear  of  otlier 
thingYi  too  ;  tbnt  tlie  Frenrh  ambasi^ador  had  a 
hand  in  thec:nntnrancc'of  this  Plot  with  him, 
and  can  that  lie  enquired  into  by  a  common 
jury,  who  are  to  concern  thern<jelvcs  in  no  more, 
than  whether  Fitzharris  be  i^'uilty ,  or  iiot  guilty '' 
I  must  confess,  that  with  the  carriage  oi*  this.'  1 
have  enlarged  my  suspicion,  and  \  must  always 
suspect  unusual  ways.  We  see  that  the  worst 
of  mankind  has  been  pardoned,  with  all  his  vil- 
lainies aliout  him,  upf»n  sm  ingenuous  confession; 
but  what  provocation  has  there  been  from  Fitz- 
harris, to  W  thus  hurried  away  to  trial  at  com- 
mon-law in  a  disposition  to  confess  all,  and  so 
he  out  of  the  reach  of  panlon,  should  that  dis- 
position continue  up<»n  him?  But  I  am  per- 
suaded scmietliing  depends  upon  this  man,  as 
we  J  as  upon  the  bill  we  ordered  to  day.  When  I 
saw  the  temper  of  the  House,  when  Jenkins  re- 
fused vonr  Message  [Sre  p.  2'28.]  (and  there  was 
something  in  that  too)  that  the  Kouse  would  make 
no  brejich  wy^on  it  and  paBsc><l  it  (»\  er  with  great 
temper,  that  now  we  must  lav  down  all  prosecu- 
tion oi'  the  Plot,  and  that  the  I'rotestant  reli- 
gion shall  have  no  mercy  !  Fitzharris  may 
merit  by  his  confession  where  he  may  reasona- 
bly hojie  for  the  same  intercession  for  his  par- 
don, that  much  blacker  offenders  have  obtained  ; 
but  if  his  breath  Ije  stopped,  I  am  sf»rry  the 
people  should  lia\  e  occasion  to  say,  '*  If  it  were 
not  for  the  Lords,  the  Protestant  religion  might 
have  been  saved."  Therefore  I  move,  that,  in 
tile  wording  of  your  vote,  you  will  not  only 
,say,  *'  That  the  Lf>rds  rejection  of  tliis  im- 
fieachment  u  nut  only  a  snbverthig  the  constitu- 
tion of  ])arliameiit,"  hut  *'  of  the  Protestant  re- 
ligion" also  ;  and  1  ho|K*  you  will  do  this  with 
the  same  cahnncsi  of  nund  that  every  man 
does  wi^h  that  loves  his  religion. 

(Serjeant  Maynard.  This  damnable  popish 
plot  is  i»till  on  foot  in  Kngland,  and  I  am  sun;  in 
Ireland  too  ;  and  what  arts  and  crafts  have  been 
uscti  to  hidi;  this  plot !  It  iK'gan  with  the  mur- 
der of  a  magUtrate  [(jodl'ivy,]  then  with  per- 
jury ami  false  siii>ornatio(t,  mid  this  of  Fitzharris 
IS  a  soconil  part  of  timt:  We  sent  up  an  Im- 
peachment to  the  Lonis  against  Fitzharris,  and 
told  the  I^irds,  *'  That,  in  due  time,  we  ^vould 
bring  up  articles  against  him,"  anil  the  Lords 
reftise  to  try  him.  In  eflbct,  they  make  us  no 
parhaowut— Il'we  are  the  prosecutors,  and  they 


will  not  hear  our  accusation,  their  own  li 
weU  as  ours,  are  concerned.  This  is  a  i 
way  of  proceeding ;  the  same  day  we  in 
Fitzharris,  they  \ote  we  must  not  |Mn 
him :  now,  wKen  all  is  at  stake,  we  mi 
prosecute.  If  this  be  so,  Holland  must 
and  let  the  French  ran  over  all.  Th 
strange  breach  of  privilege  of  parliame 
tends  to  the  danger  of  the  king^s  person,  ] 
destruction  of  tlve  Pkotestant  KeligioD, 
hojie  you  will  vote  it  so. 

Sir  Thotuus  Player.  I  shall  make  you 
tion,  but  first  I  shall  say  we  have  had 
sidcrabfe  discovery  of  the  former  plot. 
it  the  old  plot,  but  this  of  Fitzharris  hi 
new  upon  us.  This  is  still  a  oonfirma 
the  intention  of  murdering  the  king,  tL 
consenting  to  destroy  his  own  brotber  a 
kiii^ — I  have  often  heard  it  whispered,  t 
design  of  Madame*s  voyage  to  Dover 

S>romote  the  nopish  religion,  but  it  is  pk 
Fustice  Godlrey  was  murdered  by  the  ] 
and  that  the  army  mustered  on  Blackhei 
raised  ^ith  intentions  to  destroy  thcjProtes 
Holland,  and  to  awe  tlie  City  of  London- 
FitzhaiTis  gave  intimation^  that  he  woi 
cover  what  he  knew  of  this  plot,  and  tl 
or  three  honourable  members  of  this  Hoi 
examined  him,  this  man  was  fetched  tl 
day  to  Whitehall,  and  from  thenoe  1 
away  to  the  Tower,  and  so  we  were  depi 
all  iartlier  hopes  of  discovery  from  him 
now  revive  the  infomiation  from  an  Ini 
ment,  and  now  this  man  must  not  be  li 
hither  to  be  tried  :  He  must  be  tried  in 
terior  court,  that  his  moutli  may  be  stopp 
put  out  of  f rapacity  to  discover.  This  be 
case,  I  move,  "  Ijiat  if  any  judges,  jus 
thoe|>eace,  juries,  (Sec.  shall  pr<K*eed  uj 
trial  of  this  man,  that  you  will  vote  them 
of  his  nuirder,  and  betrayers  of  the  righti 
Commons  of  England."* 

Hereupon  the  House  came  to  the  fol 
Ilesolutioijs : 

Resolved,  '*  That  it  is  the  undouhted  i 
the  Commons,  in  parliament  assembled, 
peach  before  the  Lords  in  Parliament,  ai 
or  ConnnoniT  ft)r  treason*  or  any  other 


*  **  Mr.  Justice  lilackstone,  4  ComnK 
c.  IP,  lays  it  down,  **  That  a  omimom 
not  be  im|ieachcd  btdbre  tlie  Lords  for  s 
pital  oH'uncc  but  only  for  High  Misdemea 
And  to  prove  this  position  lie  cites  tlie 
Simon  de  Kcrestirnl,  from  Hot.  I'arl  4 
No.  2,  and  6. — This  case  is  as  follows:  " 
in  4 til  Ed.  3,  the  king  demanded  the 
barons  and  peers,  to  give  juilgment  i 
Sim<m  de  Herestord,  who  had  been  a  no 
accomplice  in  the  tnmsous  of  Koger  < 
.Mortimer,  they  came  beftiri'  the  king  in 
ment,  and  said  all  with  one  voi(*e,  t] 
said  SSimon  was  not  their  iieer  ;  and  tb 
they  were  not  bound  to  judge  him  as  a  ] 
the  land.  And  when  aftem'ards,  in  tin 
parliament,  they  were  prevailed  U|ion,iiii 


^37] 


STATE  TRIALS,  S3  Charles  II.  \6h\. ^Edward FUzhmriB. 


[?3S 


to  te  DotorieCy  and  helnousiiess  of  bis  crimes, 
to  reoeire  the  charge  aiid  to  gpive  judgment 
■giBrt  him,  the  ftTlowin^  jirotest  and  proviso 
»«  entered  on  the  parliament  roll.      <  And 

*  k  is  assented  and  accordctl  by  our  lord  tlie 
'  kmg^,  and  all  the  great  men,  in  full  parliament, 
^  Ika  aflieit  the  peers,  as  judges  of  tlie  pariia- 

*  Boit,  have  taken  upon  tnein,  in  the  presence 

*  ftf  ear  lord  the  long,  to  make  and  render  the 

*  and  judgrnent ;  yet  the  peers,  >vbo  now  are 

*  cr  nail  be  in  time  to  oouic;  be  not  bound  or 

*  charged  to  render  judgment  upou  others  than 
'  peers ;  nor  that  the  peers  ot  the  land  have 

*  uewti  to  do  this,  but  thereof  ought  ever  to  be 
'  oMiaiced  and  acquitted  :  and  that  thoafore- 
^  nad  jiM^rment  now  rendered  be  not  dra^\n  to 
^eiample  or  consequence  in  time  to  come, 

*  whereby  the  said  peers  may  be  charged  here- 

*  aAer  to  |udge  others  than  their  peers,  conti-ar^^ 

*  to  the  laws  of  the  land,  if  the  like  case  ]iap]icn, 
■  wbich  God  forbid.*— Rot.  Part.  vol.  2,  p.  /)3, 
54.    8ee  this  case,  in  the  ori<i[iiial  language, 
with  the  opinion  of  the  judges  thereupon,  in 
tbe  Appenitix  to  this  vol.  No.  lO. — ^JIuw  fai- the 
esndiiwm  drawn  by  sir  W.  Biackstone  from 
tUs  case,  which  was  a  prosecution  at  the  suit 
of  te  king,  has  been  admitted  to  be  law,  with 
nganl  to    prosecutions,  brought    before    the 
Lonfai  by  impeachment  at  the  suit  of  the  Com- 
■HMH,  will  appear  from  the  great  niunber  of 
hMineeBy  which  occur  in  the  iullowinsf  part  of 
tUs  Tolame,  f subsequent  in  point  of  time  to 
Ihis  of  Smon  de  Bercsford  in  the  year  1530) 
where  csnunoners  have  been  im]ieachcd  be- 
fore the  Lords  tor  capital  offences,  and  in  which 
the  Lords  have  not  made  this  objection.     Lord 
fioOis  in  bis  work,  concerning  the  judicature  of 
the  House  of  Peers,  pnblishcd  in  1669,  speak- 
ing of  the  case  of  Simon  dc  Bei^esford,  gives  it 
as  hii  opinion,  '  That  the  protestation  of  the 
I/irdf ,  not  to  sit   in  judtrment  upon  any  but 
peers,  was  a  mere  order  ofthe  House  of  Lords, 
dteroMe  at  pleasure.' — On  the  Sad  of  July, 
1889,  (Hee  the  Case  of  sir  Adam  Blair  and 
eCben  in  this  Cf«Dection)  a  douM  arose  in  the 
Honse  of  Lords,  Whedier  this  reronl  of  the 
4di  of  Ed.  3,  was  a  statute  ?     And  the  ques- 
tion being  put  to  the  jtiilges,  they  answer  '  As 
B  appears  to  them  by  tlie  aforesaif I  copy,  they 
beheve  it  is  a  statute  ;   but,  if  ihcy  saw  the 
nit  itself,  they  could  be  more  positive  therein.' 
Itwaatben  proposed  to  ask  the  judges,  ^Vhc- 
flier  the  Lends,  liy  this  statute,  be  barred  from 
tiying  a  commoner  upon  an  impeachment  of 
the  House  of  Commons  ?     But  the  previous 
qnestion  being  put,  it  pHsse<J  in  the  nr'sfutive. 

*•  in  the  1st  vol.  of  the  Lords  Deliates  (S(^  Aji- 
pendix  to  4  Cobb.  Pari.  Hist.  Mo.  xv.  p.  rl.viii.) 


moncrs  impeached  by  the  Commons  in  par- 
liament ?" 

"  ^Vhen  Simon  de  Beresford  is  charged  by  the 
king  in  aiding  and  advising  with  the  said  earl 
Mortimer  in  the  said  treasons  and  felonies,  the 
said  earls,  barons,  and  peers,  came  before  the 
king  in  parliament,  and  said, '  Tliat  the  said  Si- 
mon was  not  their  peer,  and  therefore  they  were 
not  bound  to  judge  him,  as  a  (icer  ofthe  land.' 
— Tliis  accusation  against  Simon  de  Beresford 
was  at  the  kiu^^s  suit.  Bot.  Pari.  vol.  3,  p.  53, 
Xo.  4. — Notwithstanding  the  declaration  of  the 
Lords,  they  afterwards  condemn  tlie  said 
Simon  de  Beresford  and  others,  not  i)eers,  to  be 
executed  for  the  said  treasons  and  felonies — 
But  immediately  declare,  '  That  though  they 
had  from  this  time  proceeded  to  uive  judgment 
upon  those  that  were  no  |)eers,  hrreafler  these 
judgments  should  not  he  drawn  into  example 
<»r  eonFeqiirne^,  so  that  thoy  should  be  called 
upon  to  judge  others  than  tht'ir  peers,  contrary 
to  the  law  of  the  land.'  Kot,  Pari.  vol.  i!,  p. 
54,  No.  6 — In  the  Jpth  ch.  of  Magna  Charta, 
91  h  Hen.  3,  it  is  said,  '  Ncc  .super  eum  ihiiuus, 

*  nee  mittemiLs,  nisi  per  legale  judicium  parium 

*  suonnn,  vel  per  legem  terra;.'  Tliat  is,  says 
sir  Edwai-d  Coke,  'ind  Inst.  p.  4G.  ^  No  man 
shall  he  condemned  at  the  king's  suit,  either  be- 
fore tlic  king  in  his  bench,  where  the  pleas  are. 
Coram  Rege,  (and  so  are  the  words,  *  nee  super 
eum  ibiraus,'  to  be  understood)  nor  before  any 
other  commissioner  or  judge  wuatrver,  (and  so 
are  the  woixls  '  uec  super  eum  mittemus,'  to  be 
understood).'  And  again,  'i  Inst.  p.  48,  in 
connnenting  ui)on  the  words,   *  Per  judicium 

*  parium  suorum,'  sir  Edward  C/oke  says,^ 
'  Note,  as  is  before  said,  Tliat  this  i»  to  be  un-* 
dcrstood  of  the  king's  suit ;  for  if  an  ap- 
peal be  brought  against  a  Lord  of  parhainent, 
which  is  the  suit  of  the  party,  there  he  shall  be 
trietl,  not  by.  his  peers,  but  by  an  ordinary  inry : 
For  that  this  statute  extendetli  only  to  the  king'k 
suit.'  So  in  the  lord  Dacrc's  case,  in  the  26tb 
of  Henry  8tli,  on  a  question^  Whether  he 
might  wave  liLs  trial  by  his  iioers,  and  be  tried 
by  the  country,  Uie  judges  all  agree<I,  that  he 
could  not.  *  For  the  statute  of  %I(i»^a  Charta 
is  in  the  negative, '  Ncc  su|)er  eum  ibimus,  nisi 
<  per  legale  judicium  panum  suorum,'  that  is 
at  the  king's  suit  upon  an  indictment.' 
Kelynj/'s  Hep.  p.  50.  And,  in  the  tracrt  cited 
before  in  the  note,  p.  54*  sir  William  Jones says,- 
^  It  is  evident  fn>ni  the  roll  itself,  in  the  case 
of  Simon  dc  BiTesfonl,  and  the  other  records, 
that  the  liOnls  didjudgf*  those  commoners  con- 
trary to  the  law  of  the  land,  that  is,  at  the  in- 
stance of  the  king  ;    so    that  judgment   was 

I  given  at  the  king's  suit,  in  a  way  net  warninted 


IS  a  pamphlet  written  by  sir  ^Villiair  Jones,  and  |  hv  the  law  and  cust(»m  of  puilinment,  or  any 

S'jmished  iii   10^1,  in  which   this  qu(>stifm  is 
i<cn^aed,  •  Whether,  by  th'*  law  and  custom 
cf  pai-:^ument,  the  Lords  ought  to  try  com- 


.•    —    ; —    1 '         — J 

Other  law  of  the  kingdom  :  but  there  is  not  a 
1  word  in  that  n-cord,  which  imports  a  rcslriction    . 
I  of  Uiat  lawful  jurisdiction,  which  our  oonq^tu-^ 


239] 


STATC  TRIALS,  33  Charlbs  II.  168 1  .—Proceedings  agaimi         [240 


they  would  brini^  up  the  Articles  against  him  ;" 
for  the  liords  tu  reHoIve,  **  That  the  said  Ed- 
ward Fitzharris  should  be  proceeded  with  ac- 
cordiug  to  the  course  of  common-law,"  and  not 


tion  placeth  in  the  Lords  to  try  commoners, 
when  their  cases  should  come  berore  them  law- 
fully, that  is,  at  the  suit  of  the  Commons  by 
impeachmeut."  4  Hats.  Prec  pp.  54,  67. 

Mr.  Hatsell,  in  support  of  his  doctrine,  that 
commoners  may  be  impeached  of  Hig^h- treason 
before  the  House  of  t^ords,  cites  the  case  of 
Chief  Ju^ce  Scrc^i^gs,  as  to  which  he  notices 
that  the  Chief  Justice  did  not  as  a  commoner 


by  way  of  Impeachment  in  parliuiient,  it  ikk 
time,  is  a  denial  of  Justice,  and  m  ?iolationof 
the  constitution  of  iKtrliaments,  and  «uobaimi»- 
tion  to  the  further  discoTery  of  the  Popish  Flat, 


in  a  comgaoner  is  no  crime,  and  subject  to  m 
punishment."    4  Hats.  Free.  900. 

'*  Sir  Matthew  Hale,  in  the  JurisdiGdim  d 
the  House  of  Lords,  eh.   16,  p.    92,   Hyiy 

*  Some  luire  thought  this  decUmtion  of  tht 
4th  of  Ed.  .*),  being  done  thus  aolonnly,  ■ 

*  pleno  parliamento,'  was  a  statute  or  act  rf 
parliament.  But  that  seems  not  so  daur.  It 
was  certainly  as  solemn  a  dedaraSion  by  the 

1     .      ^t    »   _j  ,      •  J-    •  1  *i   wi      -1  ■  Lords  as  could  be    made,  less   than  an  mStd 

plead  tothel^rds'jurisdiction  and  that  thoiiglij  parliament;  and  it  is  as  high  no  ertdeoea 
several  members  expressed  their  doubts  how  against  the  jurisdiction  of  the  Loixis,  totiy* 
tar  the  Commons  ought  to  impeach  tor  High-  :  jj;^^  a  commoner,  in  a  criminal  cause,  as  cm 
Treas4)n  a  person  as  pnlty  ot  crimes  which  p^^blybe  thought  of:  (I.)  Because  donehf 
are  no.  d**bred  to  be  such  by  thestotutcof  oV  declaradon,  to  be  against  Uw  ;  a^l 

treasons,  25  Edward  3,  no  peraon  douUed  but  =  ^.,.^  Becaaseit  is  a  declaratk^  by  the  Li^^ 
IMX  It  ihc  cnmo^chargHl  did  amount  to  Higli    disallirmancc  of  their  own  jurisdiction ;  wUcb 


1681  (See  4  Cobb.   Furl.  Hist.  1  i78),  and  he-  Report  iu  the  Case  of  sir  Adam  Bhdr  and  •«« 
mentions  that  sir  W .  Jones,  in  the  debate,  says-^  ,  -^  ^^^  ^^g  j^  ^j^^  Collection. 


*•*•  There  is  no  question,  but  a  peer  of  Ireland  i 
is  but  a  coiiimouer  in  England :  and  no  question  | 
but  he  iiuiy  be  proct'eded  against  by  im-  | 
peaohment,  as  \%vU  as  by  common  trial.  . 
You  canmx  mistrust  vour  manasfers,  iior  a  ' 
common  jury  ;    but   the    ai^cusation  of  lord 


Roger  North  has  a  passage  on  this  soljecl 
very  well  worth  consideration  : 


i. 


\t  ilic  Oxford  parliament,  when  thebhfk' 
rod  knocked  at  the  door,  sir  Wm.  Jones  wasii 
the  midst  of  a   speeih  to  inflame  the  Hoott 


and  ftT,«|iit  M«i>anl    concuired  m  th.s  pro-  ^,„^„„      ,  ^,,„,,,  ,^,,.  ,^„  ^  ^^  j^ 

wedmg."    4  Hats.  IV-c.  p.  110.  ^,_jij  .^^■^^^^.  ,„,^^^   ,1^,  his  whole  ueui 

So  judge  Berkley  was  impeacheilforHiirh-  might  itnm*  to  »is  ;  because  the: 

Tr«asonr«ee  his  Case.  vol.  3,  p.   1'283.  of  this  obicititMi.  which  ho  was  a  going 

Collection,  see  uw  the  Case  of  JtTmvn,  PitTCv,  in  this,  viz.  that  7^r  Ttrrs  is  b 


imcrruptedby 

hid 

argumail 

because  the  strength  of  the 

'joing  to  answer,  ttei 

r  is  not  contrary  10, 

and  otliers.  mentioned  4  Hatsell  llU,  where  a  iiur  doih  roiioal  or  restrain  the  'JiidiciiMB 
reterence  is  made  to  K^rd  Clarendon's  accouui  of  *  pariuiii.'  but  bi>tii  an.'  of  absolute  extent,  the 
their  plot  and  also  to  the  queen^s  representation  titrmer  as  to  faL*t.  and  tht*  other  as  to  the  law, 
of  it.  There  is  IJ^ewise  an  account  of  it  in  >Iay  s  when  tho  fail  i»  staieil.  The  forraer  is 
History-.  Mr.  Hatsell  also  cites  the  Cuseof  Guilt  \  or  Not  Guilt\.  that  is  'per  m- 
DaniefO'Neile  impeached  of  High-Treason  in  Mlii'iuiu  {'jriiim  :  but  there  may  be  other 
the  year  1641,  and  he  ouotLS  from  sir  William  pU'.ts.  a<  inismmuT.  doimirrers:,  exoeptioDia 
Joncs*s  pamphlet,  **  If  tnis  (that  (he  I^ids  i*ouIil  p^ii-dons.  and  cuntl's.sious.  uimn  which  the  istae 
not  try  a  commoner  upon  an  iiu(ieaohiuent  lor  is  uholU  tu  the  ct»urt :  as  .^Iso  the  puiushmcat 
High-Treason)  was  so.  it  woukl  biun  thf|H>i%er  atUT  ^enhct  of  the  pcxrs,  a:id  all  that  refers  H 
oC  the  kinif,  by  making  oulv  cviumoucrs  mi-  the  Lez  T.  .—^r.  S>  as,  by  that  distinction  is 
~^  n  of  stale*  to  subvert  the  government  by  >l  Ji::i.i  Charts,  the  otfictti  of' the  jury,  and  of  tht 
O0Qtri%-ances  whrn  tlu\  pleas<\i.  Tlicir  ivuri,  .mio  for  tlut.  and  the  i<thcr*  for  law,  are 
would  keep  tlu'm  out  ot*  the  reai.*h  oi  Wt-[<i  iliMinot.  An-1  amnlier  obji\nxon  was  to  be 
courts  of  justice:  or  tlicir  treasons  a:is'.«i'u-ii.  uhich  i>  that,  li\  an  im])eachmcnK 
^Mlt  HOC  perhaps  bo  \nthiii  tlie  si.ituto.  but  a:i>i  j uii;rnieni  of  the  La^hU.  a  ooiuinouer  is  de- 
■an  as  &ir  under  the  c<v^i/aiKV  Mi'  no  other  pnveit  ot'  his  leg;*. I  cLialltxigcs.'*  Exam.  608. 
the  parliaiiiefit ;  and  if  the  pi^ople  Thfdifirrt'nces  of  opiiiioo  which  have  pir- 
t  of  right  demand  justice  tiier^^'.  il]e\     ^.iilcd  rcsj«ect!!ig  this  matter  >trong1v  illustraie 


vilboat   tiear  oi   punishment,  act  liie     tlie  unsvttleiinesa^  of  the   *  L«?x  et  Consuetude 

tiuctiTeTillaioiesaeaicsithe  kiu^om  ;     *  Pa.'-li^utim.'  ^Hv   th-'  Case  of  Shirley  and 

•ko  follow,  that  the  »aaie  fact,  which     Fag^,  \o\.  6  p.  1 1 J 1  of  tlr.s  C^^Uection.  &etoo 

'  ii  troHOD.  and  Duntthabte  with  death. .  .Mr.  iiattoU's  uucenaiuiy  as  to  whether  the 


,  and  puntthabte  with  death.  ■  Mr.  iiati^oU's  uucenaiuiy  as  to  whether  the 
5  ! 


STATE  TRIALS,  33  Charles  II.  l6sl.—EdiDsrd  Bt^AarU.         [249 

oilier  {Ktraon  Ivi"?  under  «n  Impeachment  in 
parlianiRnt  for  the  same  climes  for  whieh  he  or 
t  liey  maiid  im]>niilieil,  is  an  high  breach  of  tho 
privilege  of  parliament." 

Imincduitelj-  alter  tliew  proceodings,  namely 
nn  Monday  the  aoth  of  Slarth,  the  pariiauieut 
(vas  dissoh'eil. 


t  dsozer  to  liis  majesty's  peraun,  and 
unl  Kelisvm." 

1,   "  Thirt  tor  aiiv  inferior  court  lo 
^ainU   Edwwrd    l^tKharria,  or   any 


JouniaU  are  public  records,  Prece- 

3.  c*. 

I  Reresby,  after  notidni!  that  the  im- 
t  of  Filzharri*  was  not  done  to  de- 

to  sene  him  in  opposition  to  the 
% 

jwds  refnsed  to  netivti  Fitzluirris's 
Mit ;  ohMTving  thai,  hf  being  nlwaily 

common  law,  and  in  a  way  nf  trial 
n,  as  Maffna  t'harla  directed,  they 
nerreive  ho«  ilirir  Ho\is«^  cmild  lake 
114 rtrtence.  Ttic  Oimmona  hirciipan 
-V  u'itli  the  LiirdH,  nnd  vott-d  tliat  sudi 
^hijis  proccediDff  was  a  dtlay  uf  jus- 
aoh  of  the  privilege  of  [.avliamcnt, 
w  tli«  fiiitUw  discovery  of  tliel'o|tish 
I  that  fur  any  inferior  court  to  pro- 
p;n,  while  iin'iiii|ieaL-lim(>nt  was  ile- 
■iw  an  hitth  brwch  ol  the  privilege 
lent.  Tim  he«ts  (pew,  in  slwrt,  to  an 
ba*h  Houses,  bolli  as  to  this,  and  the 
xHi-sion.  The  Commons,  Wwevcr, 
union,  that  the  king  would  ^?e  wnj 

he  having  a<reu<ly  made  snch  ad- 
tw»nls  ttic-ir  ineaaiires,  and  bein(r  in 
tilK^  iliHtress  lor  money,  besides  that 
ID  were  near  the  king,  iirge<l  them  to 
ill  in  tlieir  endeavours.— I  was  at  the 
joehte,  as  I  was  three  time 
M  diK-uarse  ran  gcnenitly  upon  the 
lay  of  an  V  thine  lilie  the  Poi>ish  Plot, 
aaiTHdictions  ol  which  it  was  made 
:  be  inlendeil  Fitzhairis  should  come 
itnal  immediately  ■-  that  in  all  aflMre, 
»  himself,  the  laws  should  hare  theii 
MUtsc ;  and  that,  whatever  liis  owr 
Boimi  might  be,  he  would  f[oveni  hy 
id  bv  them  only.— Fitiih arris  was  »r- 
a  tiie  King's-bench  bar,  where  by  lli^ 
be  i«fnicil  to  plead ;  because  he  stiiod 
Aimt  (inpeaclicd  tor  tlic  (rimes  Iw 
■  lo  be  iuilitiwi  forj  though  the  im- 
nt  specified  no  particular  tn-aMniK, 
Im  indictminl  did.     The  counsel  fot 

•aid,  h's  plea  was  evasive,  it  not  ap- 
(riicllier  tlie  same  crimes  were  intend  - 
e  one,  as  by  the  other. 
•  Doint  was  anfULi)  at  tlw  bar,  Init  tht 


KV^' 


nrdiDVy,  holh  in  it 


ThU  last  parliament  of  king  Charles  the 
:S<«ond,  he  dissolvetl  atOxfor.!,  on  March  SBth, 
teSl.  [See  tlie  iiartiuiilars  of  tlic  dissolution 
in  Hogcr  North's  Exameii,  p.  104].  Afler 
-which  eient  he  govcrtwd  without  a  reirliamcnt, 
rsec  a  note  to  the  case  of  Itiilinrd  rhoin))soa, 
supra,  p.  r.i  during  the  remaining  four  year* 
flf  his  reign  "  with  a  sort  of  legal  tyranny,  or 
nbuse  of  the  legal  [wwers  with  which  the  con- 
elitution  hail  invested  him,  employing  his  court 
of  Kiiia's-heneh,  (as  his  father  had  employed 
•  \-  »)un  of  Star-chauiber)  lo  persecuje  liis  siib- 

nndur  the  forma  of  law,  by  taking  away 

ilie  Charter  of  the  city  of  London,  and  procur- 
ing the  suri-endfcrB  of  the  (;iiartcrs  of  aevnal 
oihcr  corportlioM  lliat  snit  members  to  parlia- 
iiK-iil,  and  tliereby  luukiug  the  (Sections  of 
iiiemhcra  of  parliament  \fst  free  and  iHipular 
than  \icfoTf ;  and  liy  ovtr-s.'vere  punishments, 
ciinrniouR  fines,  anil  vcrdictK  tor  cMCssjve  ila- 
inagrs,  given  in  civil  actions  by  corrupt  juncs, 
iiaLietl  hy  tlie  slurids  for  the  purp(«e."  See 
Mr.  Baron  Blaieres's  Prefat-e  to  llie  Debates  ji 
tlie  year  1080,  on  the  Exclusion  Bill,  edition  of 
1007.  Ol'  lUis  i>eriod  Sir.  Fox  soys,  "The 
\ylnde  liistory  of  the  remaining  jmrt  of  thu 
reign  exhiliilB  an  uninterriiplcd  srries  of  allacks 
upon  the  lilMiriy.  proiiertv,  awl  li»"  of  his  sub- 
jects. To  give  an  account  of  all  IIm-  oppression 
ofdiisiMTiud,  «-ouId  be  to  cimmi-ralc  i*ery  ar- 
rest, emr  trial,  cvcri'  smteuce,  tliat  took  phMe 
in  <piestion»  lielwei'U  the  crown  and  thu  sub- 

And  Blackstone  speaks  thus  :  "  Tlie  point 
"f  lime  at  which  I  wouM  choose  to  hx 
die  iheoretiml  perletTtinn  uf  o>ir  |iiiblic  law  n 
the  year  IOTP,  after  the  IlaU-ns  Coriuisact  wan 
passed  ;  «id  that  Ibr  (ieensiiig  the  presa  had  ei- 
uired  :  though  the  yaat  which  hnmeiliately 
followed  it  were  times  of  great  iiracti(«l  uplnvs- 
It  is  for  from  uiy  intention  to  jolliute 
or  defend  luaiiy  icry  iiiii|oitou«  |irw«i.lings, 
.-ontrary  to  all  law,  in  that  reign,  Uirough  the 
»r,ilice  of  wickeil  polititiaos,  botli  in  and  wit  i.f 
«niJ<>vmfnt.  WhatseerosineraitestalA-isthis 


■  Wdl  as  becaose  of  the  scv*crc 
HMOS  at  Oxfiinl,  the  jtulgcs  took  tune 
ler  of  it,  but  two  Anys  atWrwanls  pm- 
I  M|rmeut  fitt  the 'king;  and  in  the 
ttMns  teceii  eil  sentenc;  of  drath,  fur 
■^  sod  WHS  c^eclltL■d  accordingly." 
Ii^dab«nv  n.  That  the  period  atwkich 

Ckapueoied  of  iIm  linpeacluiicnl  of 
._mi  the  citcumstiinees  attending  it. 
Mi  or  cuuduauus  that  may 
It  fNcecding  of  vi^y  liU-iu 


iiHu  uj  thi-  low,  as  it  tb»n  stood,  (uolwithstond- 
ing  some  invidious,  nay  dangenins  liraiHlies  ut 
the  prerogative  liaie  siiH-e  been  k.piH-d  off,  anil 
tlio  r*«t  uwin'  clearly  deKiied)  the  |(i-ojilu  hiiil  us 
huge  a  portion  of  real  liberty,  as  in  t-oiwsUut 
Willi  a  stale  of  society  ;  ami  sutheient  (luwer, 
residiug  in  tlwir  own  'hands,  to  assert  and  prt- 
sene  that  liberty,  if  iuva.k'd  by  the  royal  prt'- 
rogative.  For  which  I  need  hut  iiinieal  to  the 
iiiLiiionible  i-otaslmpln!  of  the  iie%t  nign.  For 
nlii-n  kiugCliaries's  delwletf  br.llier  altetiipl.  J 
lo  enNhite  the  luttiuii.  he  foiinil  ii  w«^  Im-voihI 
lhi»po»or-.  tiuipeopkJ  botk  could,  aiid  did,  «■• 


343]         STATE  TRIALS,  33  Charles  II.  iSsi.—PreeetdiMga 

n«t  him  ;  am),  in  ronwanence  nf  snvh  miMt- 
ance,  obl^«i)  him  to  qiih  a'K  enterprize  uul  his 
thrODe  togcilier."  B.  CuDim.  B.  -i,  c.  S3,  ■.  5. 

UpoD  this  Mr.  Ftix  exc'aiins  : 

"  TVIiat  a  fieM  for  mcditalion  does  this  tliort 
dMcn  alion,  from  such  &  mui,  fumiah !  \Vbat 
icftectioiis  does  it  nut  iuggen  to  a  thinkinff 
mind,  upon  the  inethuai'y  ut'humui  laws,  ana 
thriinperteilionsofhurouicoDitituliiHiB!  We 
•r«  caded  finin  ihe  contemplatioa  of  the  pro- 
grNaol'ourcDiLstitutJou,  andouratteotion  fuc- 
e<l  with  tiie  moKt  miuute  accuracy  to  a  pailicu- 
lar  point,  whni  it  ii  aaid  to  h^re  nsen  to  iu 
MXBOost  paiectioD.    Here  ve  are  then  at  the 


best  innment  of  the  bat  ciOiittitntiiiB  Uul 
human  wisdom  framed.  What  ftUim 
lime  of  oppmsioti  and  miseiy,  not  ■ 
from  exterrul  or  acddenlal  caiues,  so 
vrar,  pestilenci;,  or  famuie,  nor  eren  froi 
suvh  aheration  of  ihe  Uwa  u  miglit  be  aw 
to  impair  this  boasted  pertectim,  but  n 
corrupt  and  irickcd  adminiitntioa,  wb 
the  BO  much  adniired  cbccka  of  the  oout 
trere  not  Me  to  prerent.  How  Tain  diet 
idle,  how  nresumptuous,  is  ti>e  opinioc 
lam  can  do  every  thiitc  1  and  how  mi 
pernicious  the  maxim  Rninded  upon  ii 
meuuree,  not  men,  arc  tn  be  attoided ' 
Fox's  Hist,  of  the  Reiipi  of  Janm  3,  p. 


Froreedtngs  against  Edward  Fitzuabris  in  the  KingVBe 
upon  his  Arraignment  and  Plea*  to  an  Indictment  for  I 
Treason:  33  Charles  II.  a.d.  1681. 

ON  Wednesday  April  27,  IdSl,  the  Grand- 
Jm-in  for  the  county  of  Hiddletex  were  aworn ; 
and  after  rile  Charge  delivered  by  Mr.  Justice 
Jones,  his  majesty's  Attorney- General  (ur  Ro- 


bert Saivi  er)  desired.  That  some  of  that  C 
Jury  wliirh  served  fur  the  hmidreds  of  £ 
ion  and  Gore  (that  for  OBnibUm  bundr 
ing  immediately  a^jounied  for  a  wedc) 


•  '  I  do  ap|Kiint  Francis  Tyton  and  Thomas 

<  Bacset  to  print  the  Arrsignment  and  Plea  of 
■  Edward  Fitxhsrris,  with  the  Arguments  and 
•  Proceedings  thereupon,  and  that  no  others 

<  presmne  to  print  the  same.     F.  Pbmberton.' 

In  Maephenon's  "  life  of  King  James," 
written  by  himsiJf,  (see  Introduction  lo  hrd 
Cbircndon'R  Case,  vol.  6,  p.  S9I,  of  this  Cnl- 
leciiiiiiV  is  the  following  passage :  "  April  !j7, 
liiH  I ,  FWhanis's  indictment  before  the  Grand- 
Jury  to-morrow.  Tlie  king  was  confident  it 
vi'iM  bolimnd;  and  though  all  ihepmrticcs 
iu>:i|riiialili;  were  UNcd  to  pack  a  petty  jury,  yet 
the  uriHifa  wi-rv  an  ek>ar  againNthtm,  that  they 
n  i>:ihl  hardly  find  twelvo  men  so  wicked,  ax  t» 
prrjiirv  tltniisi'lrcii  so  impudently,  against  law 
and  jiiNtin'  in  iIil-  fan-  of  the  world." 

"  .\  few  days  tiefnrc  the  king  went  tn  Ox- 
ford, FUKharriH,  an  Irish  I*apiM,  wastkken  up 
li  f  Inimiug  a  nialicinus  ami  treesniMl)le  libel 
agininst  the  king  and  his  wlioh;  fiiniily.  He 
hud  met  Mitii  nne  Kvrrard,  who  pretended  to 
n.nke  ilise(iverie!i,  and  a!i  was  thought  had 
mixed  a  grrat  deal  iif  lalselmHl  with  some 
trrnli :  hut  he  lurid  himself  in  general  terms, 
and  did  not  descend  to  so  many  [ttrticuhirs  on 
tile  ivitnesses  had  dotkr.  Fitzbarris  and  he 
liad  lieen  Rii|UBiiiied  in  France ;  no  on  that  con- 
fHlf-ni^u  he  sliewcd  him  his  hhel :  anil  he  made 
nn  a|iiiiiiTititieiit  to  ruiue  tn  F.verai'd's  cbamlier, 
ivhn  thnught  he  intcnilud  to  trepan  him,  and  so 
huil  plaetil  wituivu-s  to  (iverfaear  all  that  mrt. 
Fit/liarris  li:!)  the  lilwl  with  him,  all  writ  in  lii* 
own  hand:  Ki pranl  went  with  the  paper  ■ 
with  lib  witnesHes  and  informed  B((«in>t  Fi  _ 
harris,  who  upon  that  was  committed.  But 
■eeiiig  the  proof  agminat  him  woa  like  to  be  full, 
ba  md,  the  libel  wo*  dtawa  by  Efcnvd,  and 


only  cnpicd  by  himself:  but  beludno: 
proof  to  supjnrt  thin.  Cornish  the  aba 
ingtoscehun,  be  desired  he  vronldlrii 
a  justice  of  peace ;  for  he  could  molM  a 
discovery  of  the  plot,  &r  beyond  bD  tin 
yet  known.  Coruish  in  die  lijnpliciljr 
heart  nent  and  acquainted  the  king  will 
for  Mliidi  he  was  much  blamed;  for 
said,  by  this  means  that  discovery  mi^ 
liceustopt;  but  his  going  first  whh  it 
court  jirnied  afleniardi,  a  great  happinei 
to  hiiiistlt'  and  to  many  others.  The  sect 
and  B'inie  privy  coutiBrllors  were  upot 
sent  to  examine  p'ilzharria  ;  to  whom  h 
a  Innsf  rclalioii  of  a  ]iraolice  lo  kill  the  Ic 
Hliicii  the  duke  was  concerned,  with 
oilier  particulars  which  need  not  be  ment 
fur  it  was  all  a  fiiiiou.  Tlie  aecretaiies 
to  him  a  seeoiid  time  to  examine  biin  R 
he  boldly  stood  to  all  he  had  said :  and  ' 
sirt-*!  that  some  justices  of  Ihe  citv  mi 
bmup;ht  to  liini.  SiiCLiylon  and  'iVebi 
lo  liiin  :  ami  he  made  the  Mme  pretend 
cover}'  to  ihcm  over  again  ;  and  inni 
that  he  was  glad  it  was  now  in  safe  lian 
wi>ulil  nol  stillc  it.  The  king  was  hig! 
f'luled  Mith  this,  tince  it  plainly  shewed 
tru!<t  of  his  minUters :  and  so  Fitshan 
rcmnred  to  the  Tower ;  which  the  CO 
siilvcd  lo  make  the  priiNin  for  all  ofleiidi 
there  should  be  slK-riffs  diusen  inar« 
king's  derotinn.  Yi-I  the  dqmsitioa  n 
Clayton  and  Trvhy  was  in  all  points  lb 
that  he  liad  made  to  the  Kecretariea:  i 
there  was  no  colour  for  the  pretence  aft 
put  oti  iliis,  as  if  they  had  pnu^isednafe 
"  The  parliament  mot  at  (Moid  W 1 
the  king  opened  it  with  aner*  raflMd 
the  proceedings  of  the  fotmer  pi 


45]  STATE  TMALS,  33  Charles  H.  l6B\.^Edward  Htzharris. 


[246 


■t  the  ftrearii^  of  tbe  witnesses  |  in  the  Tou-er  of  London,  ivhicli  was  frmnted  ; 
Indictment  ibr  Hu^b  Tiveson,  to  be  '  but  tbe  Grand-jury  beiu^  under  s^)nie  scmples 


e 

pan 

wfcfped  against  £dvrurd  Fitzbarris,  prisoner 

aid.  he  was  resolred  to  maintain  the  succes- 
MB  of  tbe  crown  in  the  right  line :  but  for 
MMliig'  his  people's  fears  be  was  willing  to  put 
m  aihninisl ration  of  die  government  into  Pro- 
tolHt  hands.  This  was  explained  by  £mley 
fld  Littleton  to  he  meaiit  ot  a  prince  regent, 
rilh  wbom  the  regal  prerogati^'e  shouUl  be 
9igtA  doiinip  the  duke*s  life.  Jones  and  Lit- 
letaDfoaoa^ped  tbe  debate  on  the  grounds  fur- 
BtAjr  mentioned:  but  in  the  end  the  propo- 
■doB  was  rmecteil ;  and  they  re8olve<l  to  go 
Min  to  the  Bill  of  Exclusion,  to  the  gi-eat  joy 
sr  the  duke's  party,  who  declared  themselves 
nore  urainst  this  than  against  the  exclusion  it- 
(df.  The  Commons  resolved  likewise  to  take 
iie  management  of  Fitzbarris's  affair  out  of 
ihe  hands  of  the  court :  so  they  carried  to  the 
Lonb  bar  an  impeachment  against  him,  which 
ats  rgected  by  tbe  Lords  upon  a  pretence  witli 
wtitHn  lord  Nottingfaank  furnished  them.  It 
diis:  Edward  the  third  had  got  some 
to  be  condemned  bv  the  Lords ;  of 
when  the  House  of  Commons  coni- 
phaifdj  an  ocder  was  made,  that  no  such  thing 
ibonM  be  done  for  the  future.  Now  that  re- 
hiMl  only  to  proceedings  at  the  king's  suit : 
bat  it  ooidd  not  be  meant,  that  an  impeachment 
from  iJbe  Commons  did  not  lie  against  a  com- 
Msner.  Judges,  Secretaries  of  iState,  and  the 
Uad  Keeper  wero  ofWn  commoners :  so  if  this 
aas  good  law,  here  was  a  certain  method  offered 
lathe  eomt,  to  be  troubled  no  more  with  im- 
by  employing  only  commoners. 
the  peers  saw  the  design  of  this  im- 
and  were  resolved  not  to  receive 
it:  and  m  made  use  of  tliis  colour  to  reject  it. 
Upsli  tftst  the  Commons  past  a  vote,  that  jus- 
tioe  was  denied  them  by  the  Lords :  and  they 
iko  voted,  that  all  those  who  concurred  in  any 
in  tryiag  Fitzbarris  in  anv  other  court 
betrayers  of  the  liberties  of  their  country. 
**  Pitzharris's  trial  came  on  in  Easter  Term : 
rbgga  was  turned  out,  and  Pemberton  was 
chief  justice.  His  rise  was  so  luirticular, 
Ihat  it  ia  worth  the  being  remembered :  in  his 
vooth  he  mixed  with  such  k'wd  company  that 
ae  aoickly  spent  all  he  had  ;  and  ran  so  deep 
ia  debt  that  ne  was  cast  into  a  jail,  where  he 
ky  many  yean :  but  he  followed  his  studies  so 
doie  m  the  jaD,  that  lie  became  r»ne  of  the 
allest  men  of  his  profession.  He  was  not 
vbiDy  for  the  court:  he  had  been  a  judge  be- 
fttVi  and  was  turned  out  by  Scroggs's  means : 
nd  now  he  was  raised  again,  and  was  afler- 
Vudi  made  chief  iustice  of  the  other  bench : 
lot  not  being  compliant  enough,  he  was  turned 
Mt  a  second  time,  when  the  court  would  be 
aerved  by  none  but  hy  men  of  a  thorough  paced 
obsenuioasness.  Fitzbarris  plcarled  tlie  im- 
pOKamenl  in  parliament :  but  since  the  I/>rds 
nd  thrafwn  that  oat  it  was  over-ruled. 
•I  Fhsharris  was  tried  next:  and  the  proof 
full  tha)  be  was  cast.    He  moved  in 


against  receiving  of  the  bill,  desired  the  opinion 

court  that  I  nkight  bo  ordered  to  coiue  to  hun, 
upon  what  reason  I  could  never  ini»i;ine :  a 
rule  was  made  that  I  might  s|)eak  to  i»lni  in  the 
presence  of  the  lieutennnt  of  thi*  Tuwer.  I 
went  to  him,  and  presscti  liini  veliemoutiy  to 
tell  the  truth,  and  not  to  deceive  hiiiiselt'  Vi  ith 
false  hoi>es.  1  charged  him  wiili  the  inipru- 
babilities  of  his  discovery-  \  and  laid  home  to 
him  the  sin  of  peijniy,'  cljioH^  iu  nuitt«^rs  of 
blood,  so  fully,  that  the  liimtenaiit  of  the  Tower 
made  a  very  Just  report  of  it  to  the  king,  as  the 
king  himself  told  me  afterwards.  \Vlien  he 
saw  there  was  no  hu{ie,  he  said  the  lortl  Mow  • 
ard  was  the  author  of  the  libel.  Howard  was 
so  ill  thought  of,  that,  it  bein^  known  that  tli;'rc 
was  a  familiurity  between  Fit^liarris  and  him, 
it  was  apprehended  from  the  bt^inuiug  that  he 
was  coucenied  in  it.  I  had  seen  him  in  lord 
Howard's  company,  and  had  told  him  how  in- 
decent it  was  to  have  such  a  man  ulHjut  him 
he  said  he  was  in  want,  and  was  ms  honest  &s 
his  religion  would  suilir  him  to  \n\  I  i«i uud 
out  afWrwards,  that  he  was  a  spy  of  the  lady 
Portsmoutli's :  and  that  he  had  earned  lord 
Howard  to  her:  and,  as  lord  Howard  himself 
t«>ld  me,  she  brought  the  khig  to  talk  with  him 
twice  or  thrice.  The  king,  as  he  said,  entered 
into  a  particular  scibeme  with  hiiu  of  the  new 
frame  of  his  ministry  in  case  of  an  agreement, 
which  seemed  to  him  to  be  very  ne^r.  As  soon 
as  I  saw  the  libel  I  ^vas  satistied  that  U;rd  How- 
ard was  not  concerned  in  it:  it  was  bo  ill 
drawn,  and  so  littlo  disguised  in  the  treasonable 
part,  that  none  but  a  man  of  the  lowest  form 
coukl  be  capable  of  making  it.  The  report  of 
lord  Howards  being  cliai*gcd  with  this  was 
over  the  whole  town  a  day  before  any  warrant 
was  sent  out  against  him';  which  made  it  ap- 
pear, that  the  court  hail  a  luind  to  give  him 
time  to  go  out  of  the  way.  He  came  to  inc, 
and  solemnly  vowed  he  ^^'as  not  at  all  concerned 
in  that  matter:  so  I  advised  him  not  to  stir 
from  home.  He  was  committed  that  night :  I 
had  no  hking  to  the  man's  temper :  yet  he  in- 
sinuated himself  so  into  me,  that  without  lieing 
rude  to  him  it  was  not  posvihle  to  avoid  htm. 
He  was  a  man  of  a  pleasatit  conversation  but 
he  railed  so  indecently  both  at  the  king  and  the 
clergy,  that  I  was  very  imea-sy  in  nis  com- 
panv  :  yet  now,  diirin;;  his  imprisonment,  I 
did  him*  all  the  service  I  could.  But  Algemoon 
Sidney  took  his  concerns  and  his  family  so  to 
heart,  and  manage<l  every  thing  relatuig  to  him 
with  that  zeal,  and  that  care,  that  nttne  but  a 
monster  of  ingratitude  could  have  made  him 
tlie  i-etum  that  he  did  afterwards.  When  the 
bill  against  lord  Houard  was  brought  to  the 
Grand -Jury,  Fitzharris's  wife  and  maid  were 
the  two  wftiiesses  against  him :  but  they  did 
so  evidently  forswear  themselves,  that  tin;  At- 
torney-General withdrew  it.  Lord  floward 
lay  in  the  Tower  till  the  Michaelmas  tenu : 
and  came  out  by  the  Habeas  Corpus^    1  went 


2  i7  ]         STATE  TRIALSp  33  Ch arlbs 

orthomiirt  then>in;  which  Mr.  Justice  Jones  J 
aloiieihiniiflit  not  tit  to  tfi^e,  but  onlerrtl  them 
lo  attoiitl  H»v!  fl.iv  when  tho  court  was  full. 

And  atrotiliii-.'-'iv  on  ThniMlay,  Ai»ri!  '28,  the 
will  cniiid  ]\\r\  vlwuv  lo  the  Kir.  aiu!  .^Ir.  Mi- 
charj  CltHlfivv  (hroilv  r  to  sir  Kihnuiidhury 
Goilth'v^,  \\\\o  \i-a>  tht'ir  lonnuan,  adJres^l 
hiinsk>lt  thus  to  ihe  i'oiirt :  • 

.^Ir.  OiKJf'rty.  >Iy  Ii>nl,   I  hare  an  hum  Wo  ; 
rei|utst  to  niako  to  *the  Court  on  the  bthalf  uf 
iuysi>]t«  and  ant^thtT  on  the  behalf  ol*  tho  i;rfuid 
jury  ilir  the  tvnnty  i»f  Middk>se.\.   of  wliich  I 
aui  toiemun.     lliis  qcntknnan.   Mr.  Wanl,  I  ' 
did  ky  of  when  I  was  swmni,  t«>chnso  anoiher  : 
nuui  thai  was  nii.r  for  the  s*»nicts  as  beinsr  . 
inort*  exjHTicnosl,  hut   lio  w  nu!d  n^t  :  and  I  ; 
heyr  your  |Mr«lon.  if  I  >]ion!i!  O'umvit  anv  fai-  I 
luiv  for  wani    of  cxyo.  i«  luv.     I^u  1  dcsirc,  '. 
hcton-  wo  J.r^.H^vd  u\*on  iWn,  litdtrtnient  bffnre 
us  that  ihi«i  'sanie  K:!/lv.:rr:s  inav  U*  e\ainine<l  " 
nlH>ut  my   lfcn.|!it»r's  doaOi.  of  which  I  sup^Hi^e  \ 
he  raav  know  mv.oh,  Uimuso  in  the  printed  1 
Narrative  he  does  si<eak  of  one  De  Puy,  who  ■ 
vas  a  very  active  n>an  aSt»ui  that  niur.ler  ;  ami ' 
how  ill  a  luan  s^**- » or  ho  hath  K^en,  ^re  d'»  hope  I 
he  hath  w  n!uch  tniih  in  him,  as  to  ull  whit  ' 
he  kiHw\s  of  thai  horrid  irimler.    Tlien  fore  1 
pray  your  kmtsiii,*.  iliat  you  o  ud*!  srrant  an 
liaivus  Corpu*  lo  frtch   hiui  Mi«r\'  \our  lortl-  ; 
»n!;»  lo  V  e\u!uuK\l  uinm  i\\ax  jKnr.t  Ufor^'  we  '■ 
do  piXHveil :  that  is  all  as  to  m\  s<  If.    ^ly  lonl.  ' 
•s  ti»  ibc  Junk".  »4«  do  aU  of  :i«'hair.h!y  |«rcsof»i 
tliis  !\%jv:T.  ai;v!«Usir\»  i?  iua\  Nf  rtr.«l  i  i  C'-'urt.  . 

L.  C.  Jms:.'-'.     ^S'r    Fr-i ::*..*    IVtiiiHTto:).)  . 
Uhai  is ii  ;  a  p^tiiu^n  *  \ 

I 

no  imtiv  t^  Fi!/harvt> :  hv.'  Hawk*»v*  ihe  iri- 
iu«ter  of  the  Tower  i.*>K  h..u  iiit;>  h.s  :r..'.:  .ic  - 
meiit :  acdiMrtxaik^  »iih  hvw  vy-i  e-'y  to  ti^ .} 
•U  hv  liiNiuinr  diaJtvver> .  Irt  :.i  U\  ,t"'n>  l-  w- 
liMi,  Thfby,  and  the  !^?':i  '-i.  is  .i  *i:N»r:\;!.'"  . 
ot'thx'trs,  ihc'.iiTh  is  wu*t\:l«iji  ilut  w-is  :'u- 
pmesiNeio  Sr  ir.;o  \et  .m  liu-  siime  t.'v:  \,: 
writ  lettefs  t»  his  wif..  w'l »  v  2s  r.-.t  il-.f.  d  ^- 
■lictetl  to  hiw.  whi^*h  I  sLi^»  a*'.ii  r^.; !.  •.-.  wh:.  '\ 
he  iv«Ki  her.  r,-.'»  he  i»i#  ••.—«. IK*!  '.'.lvp  v. ••';•. 
the  hi>ivs  of  Iro.  He  erju-ir^**  "-.r  tv»'j-*K-; 
fi?^i>  .iiT-*^-'**  n*Hie :  ore  •*?  iru'^*  wj.*  ^»''.: 
that  *er\  vH'-ir;^  la  *»lv.eh  lu  "i-.-Tcrt'l  ir-* 
vot  KYre  l.v  ^.is  Uvl  ci.:  '  ••  "i^.*v'.  .',  r.c-.» 
papvr  iwrJU'-iF'-c  "^^' T"''r.v.T  ^rj:»^f  rr"  sv."«*r- 
liifvci.  ;»"^*  r».5  y-  :'  H.»v«*v  >\  ^ .«. '*.  \^'i 
act  Ta  Mirr  *H  rxTlrr*.-:  -!  •  i  ■  : '  s;.»\  i:-  :Nji: 

|M{wV,  \^ •  I' ch  « J -i  *•'■::•.■•'"  •  .  \  r.'N":  •'  but 
ftw  fjiKth-sM  -^^  *:  ^»is  s  »^.•-\  •'•■?.  -•■  i>i^  I'M 
it  «h«we\i  »hi£  .1  ">  ^  »*:'  •:::  Hi**'*..  -»  ^*i> 
ir«<  he ''♦as  >«H»i»  J':  .-rx.%*ir-:«s!  f-.  r  t'"-*  «tK 
the  deaiirv  •??'!'  • '"  «^*-r  !»■/.:  whe:'  !^^  .-  ■  rr 
|k««n!  i»has  vn^r^  Ir  "-s.  .•.  ^>  ''.'-♦  m  -t  "•  > 
wi^  tiH*%  v»-."re  o'c''»i!:-tV  ■•  ;    ^y    »     ■  ■  - 

nr«cC:%«i  **a  hxr   ■■  ■_:••  ,'•.  ■   ^jl  .  *  j  ~^  -  ^ 

Mr.  thar  sh*  -it-ii-rr*:-  .  r  .X->..'u:"    *  -.  '  -^ 

f^U.  tfai^  L?!i*  "^tisje  iru.* ■•..»:*.  "-"!?•■■•'  •■.: 

^r,  X^.  5v;*. 


II.  l6BU—Preaedmgs  0g0hi9t        p4B 

C/.  ofCrowH.    It  b  not  snbscnbed  by  wof 

body. 

Jurors.  But  we  do  all  own  it,  mj  lord. 

L.C\J,  What  is  it?  Read  it. 

CL  ifCfown.  "  We  Michael  Godfrey,  te. 
heinir  sworn  to  seire  in  the  grand  inquest  fa 
tho  hundreds  of  Edmonton  uid  Gore,  "^ 
couniy  of  Middlesex,  vc.  and  beinff  ycstad^ 
sent  l«)r  into  the  Court  of  Kin^'s-wneh,  hyi 
mossen'/f  r  from  the  said  Court,  to  be  prewBliI 
the  swearing  of  several  witnesses  prodiKedfli 
the  behalf  fv{  our  sorereiffn  lonl  the  king,  M 
prove  the  tn:th  of  Sf>me  fudicimentSy  then  ii 
the  h-nds  of  the  Clerk  of  the  Croiro  ;  and  *• 
ser^insT,  that  sir  WilUani  Waller,  Smith.  mJ 


^«A 


othors,  were  sw<im  to  give  cndcnoe  ^^ 
Kdwanl  Fii/.harri»,  now  prisoner  m  the  Imai 
who  in  the  late  parliament  at  Oxford,  WM  ■* 
iv'acht  d  b\  the  honourable  House  otT 
m  the  naine  of  tliemselvcs,  and  of  afl 
nions  of  Engrland ;  of  wbicb,  we  the 
chael  Godtrey,  Sec.  are  part,  and  aa  ji 
lie  his  iudses*il5o. — We  therefore  hon 
siro  the  opinion  of  this  honouiaMe  Court, 
ther  it  be  liuful  and  sate  for  us,  the  nklGai- 
ftev,  -Vc.  .in  L-ase  an  Indii-tment  of  the  ail 
F!r/.harri>  should  be  bromht  beHne  as)  tafi^ 
ct»c\l  to  exaiiii'ie  any  witnesses  in  ivfemMe  t| 
tlie  sait?  In-.ltctmeni/or  any  way  to  meddle  wak 
ii.  or  [troceeiil  unon  it.  noiw  iihstanding  the  wM 
lm'x*acliraent,  and  Witi-s  pursuant  to  it  by  ifat 
sa'il  lH«uoura>Ie  House  of  Cvowboitt?  And  Ail 
Sv  i:  ^-  a  STVui  \»»>ii.i  in  law.  and  of  so  gnai  i 
O'TiM'^'iviKV  t-r  r.*  X''^  undertake  in  a  pourtrf 
r\;Ii;  no;  <tHkd  h\  onterence,  and  rPtnaiaiBg 
\«.f  nnt!'-ttrniiT»e<l  .a  ilie  hii:ii  Court  of  Pufia* 
liiv'.kt. — We  thentor^  h;u>-.<ly  desire  the  Ofi- 
TiiO!!  o(  fr.i*  Coi:r«  i.^xi  the  «  hole  matter,  Whe- 
:hi:  ku'ii'y  2!. J  TKiiViv  we  u-^y  pn^ceed  to  fioA 
ii,:  iinl.  I'-i".-  r.i  't  rif/hATTi<.  or  no."' 

>l7  i..  >Iy '.  nt,  we  .!.»  humbly 

i*ie  rv*.*.  ■.  ■ .!  ••:  I.  V'  l'«>.in  ;a  this  matter,  as  a 
:;:.•  ^  ^ !  aei  jl:i :  !  "r  w :  on:  N: t ween  two mil- 
*:  •.  o^.  AS  v.v  i-i.  tl.ir.U  :'.  and  shall  be  grourf 

1    C  J   l.'vk  y  ti.  •^•.uTlemen  of  thejoiy, 

-1  :•"<-.  I- -■■';■-:  .  S.r R'Ncrt Sa^'er.)  My 
'.■^-•.  .^  :  .%.-<-•'. :  ^  srarx  ii'.t  ■:ce  i»i»rd  :  ihisIiH 
y.w'.r.'^--  n  ;*  :ji:.7v».iT».-  th>  jrnn*!  jurryes- 
'.i  n.:  :•. .  •  •  I  '.  •-  s  .;-> .  ''e-ri::  «  as  di^^nst  ampt- 
.r  c'l;':'  ■  .  '  .  »•-  ""it'-  y-i""  jji^iTieni-  and  is 
\%^rt'  ts  .'  r-.-TV  :  -  ..•  r^r  i!'.  I'.ia:,  the  body  rf 
t^ie  I',  ^-i^o.  '.  J-  L-i  i_^e-«<.  :bnrt"  lo  hear  the 
b'^i.-T  .t  V.  .nf*.!  i- Mr  >'A".:..r  andnysdf 
o-.'i  i;*'    .:  .>■•"  '.'.  :  .Lce.   ar.*i  «peDt  sans 

i.r-v-    •  •     •     ^  ■•  -  .  i:»J  LI  was  all  givCB. 

■  ■  t->         •    •:-'.-...  ^  'jea-t:?!  d*d  seents 
■«.  x-\'         •  V    >»  "o"  ^*  .i:  i-\  h«KTid  viBaifly 

x  ijurv  v.Mild  bavte 
'  -.  V  :  "  ,  ■•'*•.:■>  tf.-y  ha^e  lae- 
•■   i-    /u.  :*  ^.   *^.-r      ^s  —z''  the  otben 


\*  i-i. 


•«.■■ 


I  •. :.  % 


V  -     \r:..rLey,  we  will 

*.  ■:  .i-.ic«i>  i:  c'f  the  jury, 

•  -  ^  -iutTcr.  and  iesns 


STATE  TRIALS,  33  Charles  II.  iGSU-^Edward  FUzharris.         [250 


Uy  proceed  to  find  tliis  indictment  or 
Ld  Dew  yesterday  of  some  scruples 
to  my  brotlier  Jones  when  you  were 

I  lie  sat  in  Court  to  ^ve  you  the 
ich  be  thought  not  fit  tlien  to  ansM  cr, 

II  lo-dav.  TVuly  we  would  have  all 
y  and  clearly  done,  that  we  may  un- 
*w  tie  ^  all  alonii^  in  this  matter. 
le  is  thu  :  Here  wa«,  you  savi  an 
ent  offered  affaiust  Fitzliarris  by 
»ns  to  the  Lords,  and  that  Impeac^h- 
r  hi<^h-treason,  wliicii  was  not  re- 
lberpU|Hm  there  was  a  Vote  of  the 
ommons  that  he  kIiouUI  not  be  tried 
it  inferior  Court :  you  desire  now  to 
iicr  you  may  enquire  concerninsf 
,  notwithstanding  these  tlu:i<rs  that 
I  thus? 

f'rey.  Yes,  my  lord. 
We  are  very  ready  and  willing  to 
of  the  king's  subjects  in  any  matters 
t  before  us,  tliat  they  muy* see  there 
tltiDg'  but  fair  proceeding  in  ail 
do  tell  ^Hw  it  is  our  opinion,  that 
diug-  any  thing  of  this  matter  that 
t  in  the  case  before  you,  it  is  lit  for 
ire  ufion  the  Indictment ;  and  you 
o  enquire  by  virtue  of  your  oaths,  if 
nt  be  exhibiteil  to  you :  you  caun(»t. 

0  take  any  notice  of  any  sneh  votes 
le  of  Commons  aOcrwards,  if  any 
J^ere,  ft»r  tliey  will  not  excibe  Y'»" 
vam  to  enqufre  of  the  matters  pven 
ge),  in  case  j-ou  do  not  your  duty  ; 
ne  if  you  haveevidencccnonpfh  given 
ify  you  that  the  Indictment  is  true, 
iiid  it.  And  hkcwise  we  ouirht  to 
ording  to  jitstice,  in  cases  that  arc 
(ore  us.     Neither  \  ou  nor  we  can 

of  these  things,  m  caM?  there  be 

(  you  suggest ;  nor  will  they  excuse 

Ml  or  man  for  tlie  breach  of  our 

afuHild  do  the  contrary.     AndthiK 

to  you,  not  only  as  our  opinimis, 
ipuiion  of  all  the  iud^^es  of  £ii^^- 
whcfu  we  did  hear  there  was  a  srru- 
y  yon  the  gentlemen  of  the  jury,  be- 
rouhl  make  the  way  fair  and  clear, 
es  did  assemble  to  debate  the  matter 
isfaction ;  not  that  we  were  dissa- 

1  in  it  ourselves,  but  that  it  miglit 
-ou  and  the  kingdom,  that  there  is 
i  fairness  used  in  this  case,  as  in  all 
d  all  the  juflges,  nem,  con,  were  all 

that  you  are  not  to  take  notice  of 
m  Kbingi ;  but  if  the  Indictment  be 
nd  you  have  evidence  enough,  you 
■d  iL  This  we  have  endeavoured 
iifrction,  to  make  your  way  clear. 
ifcliuinbly  thank  youi*  lordship. 

■ 

hbiory  went  away,  and  aftenvards 


w 


99, 1681,  sir  Tho.  Strinifer, 
■Btat  law,  moved  for  an  Hal)euK 
gvptbe  body  of  Eilwanl  Fitz- 
— = — '  by  the  Court  tOiOut  the 


death  of  sir  Edraundbury  Godfrey.  The  Court 
granted  the  writ,  and  said,  he  should  be  ar- 
raigned u|H)n  the  iiulictment  against  him,  and 
then  tliey  would  examine  him. 

Saturday,  April  30,  Edward  Fitzharris  was 
brought  with  a  strong  guard  to  the  King's- 
beuch  Court. 

Sk-rj.  Stringer.  Your   lordship  hath   been 

{deased  to  grant  an  Habeas  Corpus  for  Fitz- 
larris,  andlie  is  bi-ought  up,  and  attends  here. 
L.  C.  J,   We  will  send  for  Mr.  Attorney, 
brotliei*. 

^V'  J^tria.  I  begthis  of  your  lordship,  that 
you  will  be  pleased  to  stay  a  little ;  1  know 
not  how  he  comes  to  be  brought  up  liere  ;  Mr. 
Attorney,  it  seems,  says,  he  knows  notliinir 
of  it.  ^ 

L.  C.  J.  IVell,  well ;  send  for  Mr.  Attor- 
ney, brother,  and  hear  what  he  says. 

Which  being  done,  and  Mr.  Attorney  come 
in,  the  prisoner  was  broughtto  tlie  bar. 

Serj.  Strinjzcr.  My  b»rd,  I  would  humbly 
move  lie  ma}  be  bi-ougkt  into  Court  to  be  exa- 
mined before  he  l>e  arrai'^iied. 

L,  C.  J.  W  hy  so  ? 

Scij.  Stritiger.  My  lord,  we  would  have  him 
(examined  concerning  sir  Edmundbury  God- 
frey's death. 

L,  C.  J.  What  matters  it  ?  That  may  be 
done  al\cr  as  well  as  belorc. 

Ci.tfCr,  Edward  Fitzharris,  hold  up  thy 
hand. 

Fitzharri$.  My  lonl,  1  have  been  a  close 
prisoner  these  teii  wef>k.s,  and  have  not  had  the 
liberty  to  see  any  one  in  tlie  world  :  I  desire  1 
may  have  liberty  to  see  my  friends,  and  speak 
vt  itn  them,  before  1  do  answer  to  any  thing. 

Mrs.  Fill  fiat  ris.  My  dear,  plead  to  thejuris- 
didion  of  the  Court ;  Lore  is  a  plea  drawn  by 
coniiHplforyou. 

L.  C  /.  You  had  best  consider  well  what 
you  have  to  do. 

Fitzh,  My  lord,  I  desire  this  I'aper  may  be 
read  by  tlie  clerks. 

Justice  Janes.  No,  no:  tlmt  cannot  be  till 
you  have  answered  to  y(mr  uidictnieiit. 

Ci,  oJCr,  Pull  ofi'your  glove,  and  hold  up 
your  hand. 

Fitzh.  My  lonl,  I  desire  leave  to  plead  to 
the  jiuisdiction  of  tlic  (Jourt. 

L.  C.  J.  You  shall  have  it. 

Fitzh.  I  desire  tliis  plea  may  he  allowed. 

Justice  Dolben.  Hear  yuurlndictment  first, 
and  plmd  ailerwanls. 

I,.  C.  J.  Look  you,  Mr.  Fitzharris,  let  us 
thus  far  dii-ectyou:  your  ludding  up  of  your 
hand,  and  hearing  the'lndictment  read,  win  not 
hinder  you  from  any  manner  of  plea  which 
you  may  have  to  make  atlurwards ;  but  you 
can  plead  nothing  befoi*e. 

Ci.  of'Cr.  Pull  oft*  your  glove,  and  hold  up 
your  hand  (which  lie  did).  And  then  the 
Clerks  of  tlie  Crown  n^ad  tlie^ubstance  of  his 
Indictment  to  him  in  English.  And  then 
speakuig  to  liiui,  said,  Howsayeat  thou,  Edw. 


951] 


STATE  TRIALS,  33Ckaeles 


Fitzharrii  ?  Art  thou  Ovalty  of  thuhigh-trea* 
■on  whereof  thou  itmndeet  indicted,  and  hast 
been  now  arraigned,  or  Not  Guilty  ? 

Fttih.  My  lord,  I  offer  this  Plea  to  he  read 
fint,  before  I  answer. 

L.  C.  /.  That  plea?  Take  his  plea:  let  us 
■ec  what  it  is.    We  take  it  to  read  it  now. 

Justice  JoHfi,  Not  to  allow  it. 

L,  C  J.  Only  to  see  what  it  is. 


CL  qfthe  Croa^n  reads, 

*  Et  precd.  Edwardus  Fitzharris  in  nnmria 
persona  sua  venit  et  diet,  quod  ijise  ad  Indict- 
ainent.  prfl*d.  modo  versus  euin  per  jurator. 
pncd.  in  ff)rina  pned.  compert.  respondere 
conipelli  non  debet,  quia  dicit  quod  ante  In- 
dirtauient.  pne<l.  |m.t  jurator.  pned.  in  forma 
nru-d.  ci>m|M'rt.  si'il.  ad  parliam.  0om. 
Ke^N  nunc  inchoat.  rt  tent,  apud  Oxon. 
in  C*o!n.  Oxon.  fil  Die  Nartii,  Anno  lleg. 
Dom.  Caroli  Sccundi  nunc  Regis  Anglis, 
^e.  Tricesinio  'IVrtio,  ipse  idem  Edwvdus 
Fitzharris  p<'r  Militos,  Cives,  et  Burgens.  ad 
idem  Ihu-lianieut.  ad  tunc  et  ibid,  convocat.  et 
assenihlat.  de  et  pro  pra'd.  prodition.  Crimini- 
hus  et  OlftMis.  unde  i|iMe  idem  Edwardus  Fitz- 
harris iMM*  Indiftament.  pned.  modo  indictat. 
cxistit  setnmduin  I^iyeni  et  Consuetudinem 
Farliamrnti  atvusat.  et  imi»etit.  fuit  coram 
Ma^fnatibuM  e t  Pruivribus  tiujun  Regui  An- 
^Utc  in  txHleni  Parlianionto  per  Summonition. 
i|isins  Dom.  Kt'i'fis  ad  tunc  et  ibid,  asflcmblat. 
Uumlq;  iniiM*tiuo  \mvx\.  in  i^lenis  suis  robore 
et  ellVvtn  adhur  ri'maui^t,  sicut  fier  reconl. 
indc  in  Cur.  Wirliamout.  nned.  remantm.  plo- 
nius  liifui't  ti  apiHin^t.      Et  idem  Edwardus 


Fitjcharri^  uhmins  dirii,  nuo«l  si  quis in  aliquo 

s  nnjus  Ue^i  Angliie 
lie  ahquibus  IViMliiionibus,  Criminibus,  et  Of- 


Ihu'lianuMiio  Dom.  Ke^is 


ttnisis,  jMT  ^lilitc^s.  Chives,  ot  llurj^ons.  sd  hu 
jusmmli  Ihirhament.  i*ouviK*at.  et  assemblat.  in 
h^|u»miHli  Parliamom.  accusal,  ot  im|N*tit.  fuii 
civam  ^Ia4:natibus  vi  IVix^bus  hujus  He^i 
.\nt:fli«^  in  ct^lcni  l\ur1iament.  per  (^ummonit. 
ipaiun  l>(Hi).  U<yis  aMomblai.  tunc  hujiisnuHli 
rixMition.  I'rimina  et  Offimsade  ct  pro  qui  bus 
hi^iiisiiKMli  persona  in  hnjusmoili  IVliament 
Monat.  aft  napsM.  fiiii  in  I 


«sr 


IVurliainent.  IVun. 

_         _      audiri,  triari.  et  ter- 

Ikfft  MBipcr  hai'tenus  c^Hisue- 

'  JM  MMruttl,  et  mm  alibi  m 

irer.  quam  in  l^urlianioui.     Et 

tardus  Fitsbarris  i^arat.  est  iy- 

AOB  iDleiidit  tjiuod  Uominus  Rex 

Cur.  nunc  hic  <le  ec  pro  l*Kidi- 

ouB,^  el  Ofiens.  nnv^l.  ncsponden, 

•  «i  ipse  ad  IndKtaiueiit.  pnrd. 

i.  in  fbniia  mwd.  Mwupen.  ul- 

«  omMtti  Mrssi,  5£r.    i\nu 

BdwHuna  Pitsliarrttt  %enticare 

^Jilin,CriHMina>  e«i>dRx%s.  piu>l, 

-  fntiL  fsr  jwrahw.  praol.  in 

ft^yritkat.  ec  meutiiMMt. 

•  Umr  Kilviaixhis  Fiiaham* 

mfKL  iwaAtf  MiJUciat    e\tsiH. « 

1  91  mftrw.  pn»  auibiis  ip^r 

I   nukMTM  ui  ru'hamMM. 


*  pmd.  in  forma  pned.  fnawal.  et  tnijjelk.  fisi, 

*  et  existit,  rant  unnm  et  eadem  Proditio^  Crioi- 

*  na  et  Oflens.  eC  non  al.  neque  dhrom,  qfNdk 
'  iropetit.  pned.  adhuc  in  nmis  rab  nibara,?i. 

*  gore,  et  eflhctn  remanet^ 

L.C.J,  LookjooyMr.FitidMnriiyMferAii 
pleading  here,  we  UM  not  to  receive  raoh  pUk 
mg  as  wis  without  a  oonod's  hand  to  it 

Fitxk.  I  deaire  your  kHeliip  to 
counsel. 

X.  C.  X  Who  would  you  hato 
counsel? 

FUzh.  Sir  William  Jonea,  sir  Franoii.  Wa* 
nington,  sir  George  Treby,  Mr.  Wilfiam^  Hh 
PoUexfen,  Mr.  Wallop,  and  Mr.  Smilb. 

L.  C.  /.  Here  are  a  great  many  you  ■mi' 
we  will  not  enjoin  any  counsel  to  aervt  "yii 
fiurther  than  they  arewillin||^  themseheei  M 
for  sir  Wilham  Jonee,  one  en  than  you  daifaa 
he  does  not  practise  now  in  Wrnlmmalni  mj 
and  therelbre  we  cannot  aaign  yon  him  ate 
he^eaae. 

FitMk,  Then  I  denre  ■v  Franca  Wmng^ 
ton,  Mr.  WiDiaiiis,  Mr.  PbOexfen,  BIr.  Wate 

L.  CJ.  Let  tbcm  be  laigned  rfoomwlfc 
him.    We  do  aMign  yon  them  for 

And  now,  look  yon,  Sv,  yon  had  beat 

how  jon  plead  this  matter.  Yon  will  da 
tothmkofitflestitbeniorefirtalto  yon  i 
you  expect ;  therefore  we  will  gifo  yoniaa 
to  plead  the  matter  you  rest  upon,  let  il  he  whril 
it  will:  we  will  gire  you  time  to  havoadnoi 
upon  it,  and  you  shall  oe  brought  Udicr  tgihi 
on  Tuesday  morning  by  rule.  And  in  dienai 
time  things  shall  stand  as  they  do ;  BIr.  AMk^ 
ney  ^ill  consider  upon  the  putting  in  of  yov 
plei,  what  is  (it  to  be  done  upon  it. 

Fitxh.  My  tord,  I  humbly  desire  the  Iftflrfy 
to  see  my  wife  and  Iriends  m  the  mean  time. 

L.  C.  'J.  3Ir.  Attorney,  why  may  not  hi  w 
his  wife,  so  it  be  done  m  the  preaenee  of  aoas 
|>ers<>n  eatrustevl  by  the  lieutenant,  to  aee  ihrt 
noUiing  be  done  that  is  prejudicial  to  the  kiagf 

Att.  Otn.  I  cannot  oppose  it,  my  Lord. 

Fi:zh,  I  desire  my  counsel  may  come  to 
me. 

L.  C.  J.     Mr.  Fitzharris,    we  wiU 


couum4  to  ctune  to  you,  or  else  it  wiU  do  m 
no  good  to  assign  them ;  all  we  can  do  ihaBk 
done. 

At:.  Ofn.  My  I/knl,  with  submiaBian,  I  em- 
cei\e  you  will  not  alk)w  any  body  to  cone  to 
him,  \o  be  alone  with  him  ;*  that  wooU  be  lb 
way  to  (Hv^eul  the  discorcry  of  the 
he* is  accused  cf:  I  hope,  if  your 
shew  him  taT«Hir.  you  will  «1o  the  king  juste 

r.tik.  My  Lt^nl'.  1  be«rthaianyormMete 
haw  lw«n  named  msv  come  to  me. 

L  C.  J-  \cs^  \htie  four.  And  Mr.  AUnv 
nc\.they  srv  f^iri^k-uien  of  fair  credit  and  ft* 
putauoQ*  13  ih«^  w  otUX  :  w-e  hare  no  luiliiriM 
ihai  they  "dl  d^t  sny  thing  unfoiriy:^  wist 
nc  «*ao  'Vi&!a«<vsbi\  do  tvT  asT  man  inluBcm^ 
diiK^a.  «  «*  mu«i  tv 

.4..-  o«v  M>  lAvr.l.  1  am  not  agaiDitihiti 
Sol  1  wkv^M  haic  all  done  sat'tlj  and  wnatif 

KY  the*  ki:^. 


STATE  TRIALS,  SSChaHlbsII.  l6si. ^Edward  Fttzharru.         [254 


My  Lord,  I  have  one  things  more  to 
time  yoar  lordships  have  set  is  so 
thej  cannot  come  to  me  perhaps. 

It  is  kmg  enough,  Mr.  Fitzharris. 
f  I  caAttot  gret  them  to  come  to  me  in 
irhatsbaUldo? 

You  must  do  what  you  can ;  we 
)in  them  to  oome  to  you. 
I.  This  motion  of  his,  I  fear,  is  de- 
ut  ofl*  his  trial. 

It  shall  not,  Mr.  Attorney.  It  is  true 
'  time,  the  middle  of  the  temk ;  but 
lire  find  time  to  dispatch  this  business 
time  we  hare  allotled.  On  the  other 
time  they  must  have  to  consider  of 
eref«nre  tell  him,  it  may  be  fatal  and 
y'to  him  ibr  aught  I  know.  Indeed  if 
insist  upon  it,  we  might  compel  him 
^  presently,  but  that  we  will  not  in 


Pray,  my  lord,  give  me  till  Thurs- 


I  Know  it  is  time  enough  for  coun- 
w  up  a  plea  between  this  and  Tues- 

To-moTTOw  is  Sunday,  my  lord, 
cnnnot  oome  to  me  then  ;  so  I  shall 
me  day. 

>Ir.  Fitzharris,  it  is  time  enough; 
ml  waste  the  term ;  for  as  we  woiUd 

all  the  favour  we  can  in  equity  and 
I  we  must  not  deny  the  king  justice 
And  you  hear  Mr.  Attorney  say,  that 
|s  (if  they  should  delay  the  business 
■roald  be  prejudicial  to  much  of  the 
neas.  It  may  be,  that  this  dilatory 
qpend  so  much  time  of  the  term,  that 

try  it ;  and  therefore  if  we  do  give 
mr,  vou  must  not  grow  upon  us. 
«.    Mr.  Fitzharris  knows   this  plea 
well  advised  on :  There  went  a  wnole 
i  making  of  it. 

How  should  I  know  ?  I  never  saw 
of  it  till  now.  I  have  had  the  sever- 
ne  In  the  world :  I  have  had  no  body 
I  come  to  me. 

'.  Do  not  complain  of  severity,  Mr. 
.  I  do  not  believe  any  such  thing 
used  towards  you. 

Pray,  my  kurd,  give  me  a  little 
le. 

.  Mr.  Attorney,  what  if  we  do  this  ? 
;  Toa  the  plea  upon  Tuesday,  he  may 
■  Wednesday  morning  to  put  it  in. 
m,  I  eannot  oppose  it,  if  your  lord- 
lit  so  to  orderit. 

JIpIIw,  It  is  fit  you  should  have  it  to 
B,  Atloney,  before-hand. 

Jnss.  And  have  some  reasonable 
■HUmtiflD  what  to  do  upon  it. 
K  -  Wdl,  delivering  of  the  plea  on 
tfMBing  to  Mr.  Attorney,  we  do  give 
Hliy  to  bring  it  hither ;  and  then  you 
*b^  r«le  again. 

J  Ind,  I  hope  I  shall  have  the 
■gr  wife  this  dav. 
»  ati^  it  wowMiilte  nogn^  when  there 


may  be  somebody  by,  to  see  that  nothmg  be 
done  to  the  king^s  prejudice,  and  your  wifer 
nmst  do  this  ;  she  must  submit  to  be  searched, 
that  she  carry  nothing  with  her  tliat  may  be 
pn-judicial.  "And  witfi  these  cautious  we  will 
admit  her  to  come  to  you. 

Litut.  of  lower.  >ViU  your  lordship  please 
to  give  us  a  nile,  to  let  his  wife  and  counsel 
come  to  him  P 

L.  C.  J.  We  do  make  such  a  rule. 

CI.  of'  Cr,  My  lord,  we  will  make  it  part 
of  the  rule. 

Lieut,  of  Tower,  We  desire  such  a  rule  for 
our  discharge. 

L.  C.  J.  8ir,  this  is  our  rule,  and  we  have 
declared  it  to  this  purpose.  Then  as  to  your 
matter,  brother  Stringer,  this  we  will  do  ;■  Let 
the  lieutenant  of  the  Tower  keep  Mr.  Fitz- 
harris salely  till  we  return  out  of^tbe  Exche- 
quer, and  then  we  will  examine  him. 

Serjeant  Stringer,  My  lord,  we  think  it  wiU 
be  a  short  business  and  soon  over,  if  you  please 
to  do  it  first. 

Fitzh.  My  lord,  I  may  see  my  wife  in  the 
mean  time,  I  hope. 

L,  C.  J.  Do  you  insist,  brother,  that  we 
should  examine  him  presently  ? 

Serjeant  Stringer,  My  lord,  Mr.  Crodfrey 
desires  it 

L,  C.  J.  Tlien  we  will  presently. 

Lieut,  of  Tower,  Must  his  lady  speak  with 
him? 

L,  C.  /.  Yes,  after  he  is  examined.  lieu- 
tenant of  the  Tower,  bring  Mr.  Fitzharris 
into  our  little  room,  wliere  we  will  take  a  clerk 
and  examine  him. 

Mrs.  Fitxharris^  to  her  husband,  (the  court 
being  jnst  risen.)  My  dear,  do  not  confess  any 
thing  about  the  death  of  sir  Edmundbury  Go({- 
frey,  nor  the  Plot,  for  you  will  be  betrayed : 
speak  only  to  little  things. 

[Then  the  Prisoner  was  carried  away  to  ba 
examined,  and  after  that  to  the  Tower.] 

On  M<Hiday,  the  Sd  of  May,  sir  Francis 
Winninglon  and  the  other  three  gentlemen  as- 
signed of  counsel  for  Mr.  Fitzharris,  came  to 
the  bar,  and  moved  the  court  for  an  explana- 
tion of  the  rule  concerning  themselves,  and  the 
business  they  were  assigrcd  for. 

Mr.  IVtUiamt.  My  lord,  1  am  to  move  your 
lordship  in  a  case,  wherein  I  am,  with  three 
others  of  the  gentlemen  that  attend  this  bar, 
assigned  of  counsel  for  Mr.  Fitzharris ;  and 
that  which  I  would  beg  for  m^-self  and  them,  is 
this :  There  is  one  thing  we  desire  may  be  ex- 
plamed  a  httle  in  the  rule.  I  humbly  appr^end 
your  lordship  gave  leave  to  the  counsel,  whom 
you  so  assigned  to  come  to  Mr.  Fitzharris, 
and  entrusted  them  with  the  liberty  of  speaking 
with  him  alone ;  but  by  the  penning  of  the  nde, 
we  apprehend  that  the  same  restraint  is  pnt 
upon  them,  that  is  upon  other  persons,  to  have 
somebody  by  at  their  being  with  him. 

L.  C,  J,  The  lieutenant  sent  to  me  on  Sa- 
turday about  it, and  Itoldhim  it  did  not  extend 
to  you. 


it55]         STATE  TRIALS,  33  Charles  11.  iGSL-^Procieiings  agahiH 

Sir  F.  Winningion.  We  think  it  may  have  a  Mr.  Wallop.  For  mv  part,  my'lord,ih< 
constniction  t^itlier  way  ;  but  we  desire  it  may  lice  1  had  was  but  very  lately :  I  wwt  by  in 
be  made  iilnin,  as  you  meant  it. 

L.  C.  J.  We  tcl(  you  it  is  plain,  and  it  was  so 
intendetl. 

'  Sir  t\  Win.  Therefore  vrc  taking  it  that 
your  lordship  pronounced  and  meant  it  so,  do 
ilesire  it  may  be  so  expressed.  IVc  are  satis- 
fied that  it  uas  your  Iordship*s  intention  ;  we 
desire  the  clerk  may  make  it  in  plain  and  intel- 
ligible words.  Aud  there  is  this  iarthcr  in  it, 
]^iy  lord 


L,  C.  J.  yiVe  declare  it  now  to  you,  it  was 
so  meant  and  int(?ndod. 

Sir  F.  Win.  My  lord,  there  is  this  further 
in  it :  We  four  have  met,  and  we  desire  as 
much  as  may  be  to  expedite  this  matter  as  far 
as  we  can,  for  our  own  reputation,  and  doin^ 
our  duty  to  the  person  we  are  assigned  of  coun- 
sel for.  But  tndy,  so  soon  as  is  ap|)oiute<l  l»y 
your  lordship,  it  is  impossible  for  us  to  prepare 
thins^  so,  as  to  bcn^ady  by  Wednes<1ay  morn- 
ing. The  plea  I  never  saw,  nor  did  I  ever 
hear  of.it,  till  it  was  brought  and  read  here; 
but  since  that,  I  have  not  seen  it  till  this  time. 
The  rules  were  brought  but  last  night  to  our 
chambers ;  there  is  no  solicitor  in  the  cause 
that  may  attend  us.  The  indictment  1  have 
not  seen*  that  we  are  to  plead  to,  and  truly  I 
think  the  course  is  to  have  a  copy  of  the  indict- 
ment. 

L.  C.  J.  We  deny  that,  sir  F.  IVinnington. 

Mr.  William*.  It  is  impossible  fur  us  then  to 
get  ready  in  this  time,  I  hunddv  move  you  will 
assign  some  convenient  time,  1  know  your  ;ord- 
bhip  will  not  ])Ut  an  linnlship  upon  us  that  art* 
of  counsel,  to  pleail  such  a  matter  so  quickU. 
It  is  a  matter  of  diiliculty,  and  there  are  n(»t 
many  precedents  in  it ;  aiitl  therefore  it  will  re- 
quire more  care  than  onlinary. 

Sir  F.  Win.  My  lonl,  we  ought  to  present 
thins^  to  the  court  as  thev  ai-e  in  fact,  that  wc* 
may  not  lie  under  any  reilectiou  from  the  court, 
nor  any  l>ody  else.  ^'ou  made  a  rule  on  S'a- 
turday,  that  I  should  l>e  of  counsel  (or  him, 
(which  1  submit  to)  but  1  kni-w  not  of  this  ti  1 
utlerwai'ds.  I  never  saw  the  plea,  nor  any 
paper  in  this  cause  as  yet :  The  rule  was  left  at 
my  chamber  tliis  last  night ;  and  when  I  saw 
it,*i\Ir.  Williams  and  we  got  togi«iher  in  the  hail 
this  morning  :  we  could  not  do  it  till  just  now, 
aud  we  come  now  to  wait  u|M>n  the  court,  to  ac- 
quaint them  how  the  matter  stands.  I  was  not 
in  court,  when  you  gave  your  directions  about 
thin  uiattiT ;  but  when  I  fuul  what  tlie  nature 
of  the  case  is,  I  shall  lie  ready  to  do  mv  duty  to 
the  court,  aud  tu  hiui  wlio  is  uiKin  his  life.  It 
u  a  mighty  cause,  it  is  a  cause  that  may  he,  if 
we  do  not  acquit  oui-moIvcs  as  we  on:;  lit,  have 
retlecd'in  upon  our  posterity,  if  we  do  not  do  it 
as  well  as  we  can.  TlienJui-e  wi»  desire  some 
reasoniible  time,  that  we  may  ha\  (*  cropien  of  thtf 
papers  and  thiuirs  concerned  in  tliis  caus<.',  as 
\\ic  court  shall  direct.  And  we  are  assured 
your  ionlship  is  so  well  acquainted  \uth  the 
tttoai  mctfaotl  in  such  case^,  that  you  will  give 
«s  all  the  favour  in  it  you  can. 

7 


tire 

when  this  person  Fitzliarria  did  desiie  con 
and  your  lordship  aBsigned  me  amongst 
rest ;  but  nothing  of  the  order  was  broug 
me  till  this  monung :  so  that  I  know  imM 
of  the  matter  less  or  more,  than  what  1 1 
upon  the  reading  of  the  paper  here  onJSatui 
I  do  not  desire  time  for  time-sake,  or  for  dc 
but  we  tliink  the  nature  of  the  thing  is  sue 
will  re<}uire  great  consideration,  and  we  d 
convenient  time  to  prepare  it  for  the  court. 
X.  C.  J,  Look  you,  sir  Francis  Wini 
ton,  you  must  consider  here  the  nature  of 
case:  This  is  an  indictment  of  high  tro 
ajid  there  is  notliing  I  see  tliat  is  so  {vreatly 
siikrablc  in  the  case,  but  the  height  ol 
crime.  It  is  an  extraordinary  crime  inde 
he  be  guilty  of  it  (for  I  speak  not  to  preji 
your  client,  but  of  the  thing  itself.)  It  is  a 
son  of  a  very  high  nature ;  and  then  what 
we  to  conuiaer  in  this  case  ?  We  might 
tiikeu  your  client  at  advantage  here,  and  il 
been  no  uijustice  if  we  hail  made  him  plead 
me<liately  as  he  would  stand  by  it :  and  wi 
not  to  consult  your  leisure,  but  your  cli 
cause :  he  hath  pitched  upon  3'ou  tor  his  o 
sel;  we  have  given  him  three  days  tilt 
plead  as  he  will  stand  by  it,  SatunlaV,  Moi 
and  Tuesday,  and  he  is  to  come  with  his 
u|>on  >V  eibiesday .  We  have  ap|)oiutefl  for 
veniency  sake,  that  you  slionhl  give  a  co| 
the  plea  to-morrow  morning  to  Mr.  Alton 
hut  we  do  not  tie  you  so  peremplorilv  to 
j  copy,  that  you  may  not  vary  in  wioi^lsfroni 
I  torm.  (live  him  but  tlie  substance  of  the 
•  and  we  will  not  tie  you  to  the  imrlicular  ft 


won  Is.      I'erad  venture   Mr.    Fit/.harris  i 


!  not  have  expcTtetl  three  days  time,  in  coux 
law,  uiH>n  such  a  crime,  to  put  in  such  a 
when  he  tells  us,  he  will  plead  siicciaily  i 
jmisdieiion  of  the  court.  But  we  have  dr 
in  this  casn,  to  shew,  that  all  the  fairness 
can  )>osKibly  lie  itsed  shall  be  iiseil.  Oi 
other  sid?,  we  mu.st  not  s|»end  all  our  tinM 
iis  to  let  tlie  term  slip  fur  his  neglei^t  of  wa 
u|u»n  you,  therefore  if  he  will  delay  to  soi 
advise'  with  you,  he  must  sutfcr  tor  it.  I 
:  |>ose  he  diil  nr>t  c(mie  to  you  till  to-moi 
what  can  w  e  help  it  ? 

Mrs.  Fitihanis.  There  is  no  solicitor, 
lonl,  to  go  to  the  council. 

L.  C,  J.  Well,  we  must  not  spin  out 
term  to  please  him  :  he  must  take  more  « 
1  believe  lie  would  by  dilatories  be  ir]ui\  to 
it  off  all  the  term.  If  3Ir.  Attorney  gives 
sent  for  more  time,  well  and  grnid. 

Mrs.  Fit'hjrris.  I  hope  your  lunUliip 
j  give  leave  for  a  solicitor;  without  yoiu-1 
ship's  lea\e  iiom^  will  dare  to  venture. 
I  ha<l  the  ruh^  so  w^y  late — 

CI.  of  Crjwti.  They  had  il  at  three  ol 
clock  m  the  al\cnioon,  as  soon  as  it  coa 
di'awn  up. 

Mrs.  FUzharrii.  Tliat  copy  was  bra 
to  the  lieutenant  of  the  Tower,  and  he  la 
away  immediately. 


STATE  TRIALS,  $S  Charles  II.  \6si. -^Edward  FitzharrU.         [^5S 


*rmm.  Another  copy  they  had  from 

'eidiiif. 

Uzkarris.  1  iie\*er  saw  my  husband 

ver  tiU  yesttrday  in  the  afternoon, 

an  iornorant  person,  and  know  not 
I  in  it  without  a  solicitor.  As  soon  as 
t  copies  of  tlie  rule  writ  out  I  carried 
lese  gentlemen. 

\Ujrfen,  JMTy  lord,  I  think  it  will  be 
upoi  us  that  are  of  counsel,  to  be  so 
in  point  of  time ;  for  my  part,  the 
€i  under  my  door  the  hut  ni^ht,  and 
9t  till  this  morning':  It  wdl  be  a 
rd  matter  fbrns  to  j^  the  plea  ready, 

aght  of  the  indictment.  Things 
erred  to  be  the  same ;  which  we 
leaa  we  see  what  is  there  alledeed. 
hath  been  kept  dose  prisoner,  and  no 
red  to  oome  at  him  to  instruct  him  : 
re  not  ao  much  as  copies  of  any  thing 
art  make  use  of.  We  have  no  con- 
my  hnrd,  in  this  matter,  but  what  is 
s  by  the  court ;  and  we  do  not  know 
pcra,  if  there  be  any,  how  we  should 
form ;  and  that  is  it,  my  lord,  which 
iavy  upon  us ;  if  this  mao*s  business 
carry  for  want  of  putting  it  into  due 
Unine  will  be  upon  us,  who  are  as- 
counaeL  Therefore  if  your  lordship 
idcr  these  considerations,  to  gireus 
enre  to  see  tlie  indictment  we  are  to 
ire  may  be  the  better  enabled  to  do 

Vm,  Really,  my  lord,  I  ought  to  deal 
ih  Ae  court ;  without  a  copy  of  the 
t,  1  know  not  how  we  shall  be  aide  to 
« ihoiild  do. 

Amms.  My  lord,  I  do  really  more, 
IV  of  Fitzharris,  but  tor  my  own  re- 
I  eannoc  put  my  hand  tu  a  plea  of 
pence,  without  time  to  consider  very 
;  and  unless  in  truth,  I  ran.  see  the 
t,  and  compare  the  plea  with  it,  to  put 
a  fit  fur  tne  juflgment  of  tlie  court. 
things  cannot  be  gi-anted,  I  desirt^ 


r.  Why,  gentlemen,  see  wSiat  you 
se  do  you  find  any  precedent  of  a 
^ed  for  High-Treason,  that  would 
le^misdiction  of  the  ctnirt,  that  had 
nven  him  than  is  in  this  cas(^  'f 
I  ta.  We  do  not  know  wlmt  his  plea 
f  kvd,  till  we  have  seen  it  and  consi- 

L  Your  client  told  us  all,  and  we 
€  oa  veff^-  wetl,  that  it  is  to  the  jiiris- 
Ike  court,  and  can  be  no  otherwise. 
Any  thing  else  vuu  may  give  in 
Mt  guilty  ;  audit  would  be  con- 
WV  trial. 
Ha.  My  lord,  it  may  happen  to  be 
pri^  plaadable  to  the  jurisdiction  of 
r^pknownoCwhatitwiU  be  till  we 
|ktllniigsiiecesMiry  to  draw  it  into 
pirae  consequf'ntiaby,  it  is  the  con- 
Mfaat;  bat  the  ground  of  our  mo- 
^fci  ii  fbr  owtUrw.    I  did  appn;- 


bend  by  the  rule,  his  special  plea  was  to  be  ad- 
mitted if  he  tendered  one,  let  it  be  what  it  will: 
Wc  must  consider  many  things  in  a  case  of  this 
nature ;  and  at  last,  whether  it  will  be  to  the 
jurisdiction,  or  what  it  is,  we  cannot  tell  as  yet. 
And  till  we  have  seen  the  natuie  of  the  things 
and  what  is  necessary  to  prepare  it  for  t{ie 
court,  ]  cannot  venture  to  give  it  its  proper 
term.  But  our  time  is  so  siiurt,  if  your  lord- 
sliip  will  aifonl  us  no  longer,  tliat  we  know  not 
how  to  be  ready  for  it.  Your  lordship  doe^ 
speak  of  Mr.  Attorney's  being  attended  with 
the  substance  of  the  plea,  not  tying  us  to  the 
form  in  the  copy  delivenxl  to  him.  ]\Ir.  At- 
torney was  here  u])on  Saturday,  when  this 
matter  was  first  started,  and  he  knew  the  sub- 
stance then :  We  know  not  what  it  b  more  than 
by  report.  It  is  a  plea  that  so  rarely  happens^ 
that  wc  must  bo  cautious  in  wliat  form  we  nut 
it.  It  is,  af  your  lordship  hath  been  pleased  to 
say,  an  horrible  treason  that  in  the  indictment 
is  Sjiecified.  We  must  not  speak,  nor  do  not 
mitigate  the  heinousness  of  the  crime  ;  nor  do 
we  speak  it  because  it  is  term-time,  and  may 
hinder  our  other  business :  We  shall  all  of  us^ 
I  am  sure,  not  at  all  consider  oiv  own  time,  or 
loss  in  the  matter ;  but  it  bdiig  of  so  great 
weight,  we  desire  reasonable  time  to  do  our  du- 
ties :  we  name  no  time,  nor  dare  do  it ;  we  sub* 
mit  that  to  the  court.  But,  my  lunl,  under  fa« 
vour,  for  the  copy  of  the  indictment,  we  do  con- 
ceive it  is  necessary  that  we  should  see  a  copy 
of  it ;  and  wheu  the  court  is  pleased  to  admit 
the  iMrty  to  give  in  a  special  plea  to  the  matter 
he  is  accused  of,  and  assign  him  counsel  to  pleold 
it,  I  take  it  to  be  very  rational  and  ixmsonant  to 
law,  that  we  have  a  copy  of  the  charge, 
p  L,  C.  J,  Sir  Fran.  Winnington,  tor  you  to 
come  and  say  these  things  here,  methinks  is 
very  strange.  I  tlunk  }  ou  can  sliew  us  no 
precedent,  tliat  ever  so  long  time  was  given  to 
any  man  to  plead  to  the  jmisHlit'tion  of  the-rourt, 
nor  that  ever  a  copy  of  ihe  indictment  was  gfrant- 
ed  in  I  !igh-ireasi>n  ;  and  for  yuu,  because  of  the 
greatness  of  the  treason,  therefore  to  go  about 
tomake  iiKbflieve,  that  it  is  more  reasonable 
that  a  copy  of  the  indk'tment  ^4u)^Mbo^p^anted 
in  this  case  than  in  another ;  that  the  greatness 
of  the  crime  should  be  meritorious,  aiul  dos«;rvQ 
a  favour  of  the  court,  not  granted  in  other  cases, 
is  a  thing  extraordLiiar^\ 

Sir  T,  Win.  1  do  not  pre «*s  it  that  way ;  I 
pray  I  may  be  undei-stood  aright.  Ui>on  what 
ap]ieared  tlic  other  day,  upon  the  nutiirt*  of  tlio 
plea,  I  present  it  to  yonrroiHiderdt'u>n,  \^hethcr 
or  no,  when  y«m  ha^  i;  been  plea$e<l  to  admit  a 
special  plea,  you  W\\\  not  let  us  sec  that  whicb 
ivc  are  to  plead  to  ? 
L,  C.  J.  No,  it  was  ne**er  tliought  of  surelv* 
Just.  Dolbcn,  jVo,  it  hath  been  constantly  ((e« 
nied  in  cmses  of  felony  and  tre:is(»n ;  and  so  vou 
will  find  the  practice  to  have  always  been,  but 
I  will  tell  you  uhat  hath  been  dune  sometimes^ 
they  hai'c*grant<^  some  lit^ds  out  of  the  in- 
dictment, that  should  enal»le  the  (Kirty  to  fit  hi$ 
pica  to  the  eliarge ;  and  that  was  donV  in  Wit* 
typole's  case,  upon  a  plea  of  Ant^r  fntuMnift 


1 


259]        STATE  TRIALS.  33  CuABLSS  II.  l6sl^Proeeedimg$  aguiitH 


[« 


Hiey  gffcre  bim  the  times,  and  some  other  en-- 
ciimstoncet,  to  (It  his  plea  to  his  case ;  but  nerer 
was  there  aoepy  of  the  indictment  granted. 

3Ir.  Walhp.  Aly  lord  Coke,  in  nis  preface 
to  the  third  Report,  declares,  That  it  was  the 
ancient  law  of  England,  and  so  declared  by  act 
of  parliament  in  Edward  3d's  time,  that  any 
subject  may,  for  his  necessary  use,  have  ac- 
.  cess  to  records  and  copies  of  tnem,  he  they  for 
the  Icings  or  against  the  king ;  and  that  the 
practice  to  the  contrary  is  an  abusion. 

L.  C.J.  80  then,  5lr.  Wallop,  you  take  it 
thnt  ^ve  are  bound  when  any  man  is  indicted  of 
.  felony  or  treason,  or  any  capital  crime,  if  he 
say  he  must  have  a  copy  ol  the  Record,  wc 
must  iB^nt  him  a  copy  of  the  indictment :  if 
>ou  think  so,  the  court  and  you  are  not  of  tlie 
same  opinion. 

'Mr.  Wallop.  I  inform  the  court  >*lint  I  have 
rt.*ad  and  seen,  and  where  it  is  to  be  found. 

Mr.  Williami.  My  lord,  it  may  be  necessary, 
for  aut^ht  we  know,  fur  him  to  plead  over  to 
the  fact  laid  in  the  indictment,  not  guilty,  as 
sometimes  it  is  requisite  for  the  |)arty  to  do. 
.  Now  if  we  should  mistake  for  want  of  having 
what  is  necessary,  and  thereby  nreclude  him  of 
the  advantages  he  might  have  liad  if  the  plea 
had  been  rightly  drawn,  for  nught  I  know,  it 
will  lie  upon  me  for  '.ver.  My  lonl,  I  do  it 
merely  out  of  caution,  and  for  my  own  rqmta- 
tion  sake :  If  any  legal  advants^  should  be  lost 
by  my  unwariness,  it  will  be  a  peq)etual  reflec- 
tion upon  me ;  and  therefore  I  am  so  earnest  in 
thitt  case.  And,  u\y  lonl,  I  can  toll  you  what 
was  done  in  a  case  \vliiirein  J  was  ol  founsol  ; 
it  was  nut  a  cast*  of  treason  iiuJeed,  but  it  was 
murder,  the  next  crime  to  it ;  it  was  the  case  of 
King  and  Tliouias.  Thomas  was  imJioti'd  uf  mur- 
der in  one  comity,  and  found  guilty  of  man- 
slaughter ;  and  aUerwards  was  indicted  for  the 
same  munler  in  another  county,  and  being 
.  to  plead  this  matter  1  did  insist  upon  it,  that  we 
•ughtto  have  a  copy  of  the  intlictment.  There 
was  some  di.'bale  at>out  it ;  but  at  last  we  had  a 
cop}',  and  wc  alledgcd  there,  as  here,  it  was 
im|>ossib1('  to  plead  without  it :  and  the  cause 
was  removed  nither  into  this  couit  for  judg- 
ment. 

Just.  Dolben.  Tlie  first  indictment  you  might 
have  a  copy  of,  for  you  were  to  plead  the  whole 
record. 

Mr.  Williams,  Nay,  we  had  a  copj'  of  tiiat 
to  which  we]»leadc<l. 

L.  C.  J.  Mr.  Williams,  you  tell  us,  you  may 
pcradvcnture  have  occasion  to  plead  over  when 
you  know  it  is  If  igh -treason  tliat  you  are  indict- 
ed oi\  in  fnuning  and  punishing  a  trensonalde 
paper,  cannot  yon  ilin-rt  your  client  to  plead  over 
wiih<nit  a  copy  :'  Certainly  wlial  y<iu  alledge 
in  tliat,  for  a  copy  of  the  mdietment,  is  *  non 
causa  pro  cau^a. 

Just.  Jones.  W  hat  prejudice  will  it  be  to  your 
dicnt  to  plead  over  7 

Sir  F.  Win.  My  lonl,  wc  only  oflTor  these 
things  for  ourselves,  and  we  hope  we  shall  not 
he  presKed  to  do  such  a  thing  as  this,  witlmut 
lla?ing  reasonable  time  to  consider  and  delibe- 


rate of  it,  and  without  havtn^what  is  becon 
in  order  to  do  it. 

[Then  Mr.  Attorney  being  sent  for,  ctt 

into  the  court.] 

L.  C.  J.  Look  you,  Mr.  Attorney,  d» 
gentlemen  that  were  aasigiied  of  counsel 
Fitzharris,  do  move  the  court  here,  sod  ai 
they  would  have  longer  time  to  draw  up  1 
plea,  ibr  they  must  make  use  of  several  cop 
of  papers,  and  they  cannot  so  soon  olit 
them,  nor  find  out  those  records  they  musl  a 
or  other  things  as  ingredients  to  this  pku,  ia 
short  a  time  ;  and  tfiey  say  likewise,  tfa^  it 
desire  a  copy  of  the  Indictment.  Nov, 
truth,  they  ought  to  have  given  you  notiot 
this,  that  you  might  have  been  here  likerai 
hear  what  they  say  :  If  you  do  rnnariit 
^ve  them  longer  time,  we  shall  be  readT  ta 
It :  but  without  it,  we  shall  not  be  wuGng 
delay  it. 

Alt.  Gen.  I  think  your  lordship  ani  t 
court  gave  them  a  very  just  and  maonl 
time,  when  you  allowed  them  four  ^ys ;  a 
these  gentlemen  are  mistaken,  if  they  tU 
they  are  assigned  as  counsel  to  all  cfM 
They  are  only  to  draw  up  a  plea  oponll 
matter  that  is  alledged  by  the  prisoner,  sal 
the  jurisdiction  of  the  court. 

Sir  F.  Winnington.  No,  my  lord,  I  Ij 
your  lordship's  pardon:  The  rule  is  tapll 
the  special  matter  without  more  saying. 

Aft.  Gen.  My  lord,  under  favour,  itisll 
say,  and  so  is  the  course  of  law  ;  for  the  pi 
^ioner  ought  to  actjuauit  you  with  the  poimil 
dt^ires  his  counsel  to  lie'  heard  to :  And  b  d 
ease,  Fitzharris  did  acquaint  the  court  befiml 
-  would  plead,  tliat  he  had  something  to  b^l 
to  the  jurisdiction  of  the  court;  and  isl 
wife  directed  him  when  she  gave  him  fthepi|p 
1  suppose  she  had  otlur  advice  upon  it ;  i 
she  could  not  draw  it  up  in  that  form  it  a 
herself;  and  he  did  ae(|uaiut  the  court,  be  I 
matter  to  plead  to  the  jurisdiction  of  theooa 
and  concluded  so  in  tlie  papier  that  %ras  ra 
And  thereupon,  according  to  his  prayer,  be  I 
counsel  assigned  hhn  these  gentlemen.  I  efl 
seiited  to  it,  as  it  was  just  I  should  ;  but  i 
they  should  think,  that  they  arc  to  adrisek 
in  other  matters  than  that  particular  i| 
which  tliey  are  assigned,  I  know  they  hi 
their  duty'  better  than  to  ofler  at  any  fli 
thing.  Now  since  then  there  is  but  one  iM 
point,  tliC  jurisdiction  of  the  court  and  nod 
else,  for  they  arc  not  to  advise  in  other  malM 
I  think  it  was  more  than  strict  justice,  nq 
was  a  very  great  favour,  for  all  menongntli 
rc-ady  to  plead  such  pleas  inuuediatcly. 

L.  C.  J.  \vSt  hi  strictness,  we  might  kl 
required  him  to  plead,  as  he  would  stand  I] 
presently. 

Alt.  Gen.  The  law  is,  tliat  he  must  htt 
re:idy,  *  in  Poigne,'  to  make  it  aj^pear  that' 
he  avers  in  his  pli*a  is  so  ;  theretorc  you  ab 
not  have  given  him  any  longer  tinie  :  te- 
cause  all  the  world  might  see  the  court 
king's  counsel  dealt  fairly  in  this  mattWi 

1 


tfl]        STATE  TRIALS,  33  Charles  II.  iSBl.^Edward  Ftttlurri$. 


[262 


•ji 


iid  DOC  mean  to  take  advantage  of  any  thing 
lliitfoihed  like  a  surprizei  1  consented  to  that 
tJBetiiat  your  kntlHiip  was  pleased  to  set: 
And  n for  die  copy  of  the  indictment,  I  know 
■oiaij  reason  they  have  to  desire  it ;  for  tliey 
HBMt  to  adnse  in-  that,  what  detience  he  shall 
tat  only  upon   this  matter  he  hath  al- 


MM. 

iC^J.  Look  you,  gentienicn,  what  Mr. 
iiiiMij  tells  ytnx  is  so,  and  we  do  exi>ect  that 
yn  ihoold  couform  yourselves  to  it :  \Ve  have 
iifffB  Tsu  three  days  time,  which  is  sufficient 
■r  Ml  a  diing  as  this.  And  Mr.  Attorney, 
vttiUtbemthas  when  we  did  direct  tliem, 
UmAsj  should  deliver  vou  a  copy  of  tiie 

eto-iMrrow  momiiifif.  iVe  are  not  so  cri- 
widi  them,  as  that  we  nill  not  rec«nve 
Aor  alBa,  if  it  be  valiant  in  form  from  that  whush 
terterertoyou.  That  that  we  intended  by  it 
im,  That  they  shoukl  deliver  to  you  a  plea,  the 
VMinsabrtaQoe  as  that  which  tliey  do  plead 
hat  I  If  they  would  alter  it  in  the  form,  we 
«i  gifathem  leave  to  do  that  without  any  preju- 


1' 


AU,  Gen.  We  will  never  pinch  them  in 
fim;  I  tUnk  1  liavc  matter  enough. 

£.  C.  /.  I  tell  vou  truly,  I  do  believe  some 
Kails  of  his  had  counsel  to  draw  up  this  plea 
ArUm. 

Ati.  Gem.  A  great  cabal,  no  doubt  of  it,  my 
kri? 

Mr.  Wallop.  My  lord,  I  desire  that  counsel 
W  aniffnedin  my  place. 
,C.J,  Weass^[ned1iim  those  that  he  re- 
■M,  qcepting  su-  William  Jones  ;  and  we 
ilMtdsny  to  mit  in  sir  Win.  Jones's  name, 
bRMtwewoiud  not  assign  him,  but  because 
kkthdediDed  the  bar,  and  does  not  practise 

Mr.  WiUmms.  We  do  not  draw  in  the  name 
if«WB.Jones,  or  decline  him:  We  submit 
tojWMder about  ourselves;  but  we  desire 
tilfnn  that  did  draw  this  plea  may  be  add- 

LC.  J.  If  hia  wife  desira  it,  and  will  name 
.  >■»  ik  ihaO  be  90 

fitk 

^CJ.  Sir,  he  understands  what  he  woidd 

^snre  !  and  we  cannot  discharge  you  ^^P^° 

^wdi  account. 
*.  Wmilep.  Here  are  many  particulars  and 

^r  averments,  which  camiot  so  suddenly  be 

^.mt  as  the  time  allotted. 
.  Ifi.  FUMkarru.  My    lord,    there    i«    not 
^^iTlboae  gentlemen  assigned  that  1  writ  to  my 
Nhud  to  aak  for  :  I  directed  him  eij^ht. 

LCJ.  ^Vho  ebe  woukl  you  have  I* 

4ln.  FUxk.  There  was  in  the  paper  sir  Wil- 
^  Jones,  his  majesty's  late  Attorney  Gene- 
I  sir  Francis  Winniogton,  Mr.  Williams, 
^  Speaker  *»f  the  House  of  Commons,  sir 
kmelV^Vf  Recorder  of  London — 
^f}*ollexfen.  Your  lordship  may  easdy 
mJire  bv  this  afentlewoman's  carriage,  how 
lule  lOce  to.  be  Stetructedin  this  cause,  when 
ody  follows  it  but  she. 


I  desire  to  be  put  out,  and  he 


L.  C.  J.  Do  you  desire  sir  George  Treby 
should  be  added  ? 

Mn.FUzh.  Yes,  I  do. 

L.  C.  J.  Let  it  be  so  then. 

Mrs.  Fiizh.  And  sir  William  Jones ;  I  will 
do  what  1  can  to  get  him  to  come. 

L.  C.  /.  We  will  not  enjoin  him  ;  but  if  ha 
pleases,  we  leave  him  to  his  liberty. 

Just.  Dolben.  Why,  mistress,  you  are  got 
into  the  hands  of  gentlemen  that  are  usk'aciied 
and  able  in  their  protessiou  as  you  can  have  ; 
you  need  no  more. 

L.  C.  J.  Do  you  desire  Mr.  Smith  ? 

Mrs.  Fitzh,  Yes,  my  lord. 

L.  C.  J.  Then  add  Jiiui. 

Mr.  FolUxftn,  We  dcsure  that  there  may  he 
leave  for  a  solicitor,  one  that  in» y  carry  papei's 
in  the  presence  of  the  Lieutenant^ 

L.  C.  J.  We  have  confidence  in  you,  but 
not  in  other  |)ersons  ;  therefore  we  must  con- 
Kider  of  that :  But  what  think  vou  of  it,  bro- 
thers ?  We  may  permit,  1  thin(c,  one  to  come 
from  tlie  counsel  to  him  with  that  caution. 

Judges,  Yes,  my  lord. 

L.  C.  J.  Let  the  pa|>er8  be  then  insi>ecteil  be- 
fore by  the  Lieutenant  of  the  Tower,  and  be 
from  one  of  the  counsel ;  and  so  tliey  have 
Ubcrty  to  do  it. 

Att,  Gen.  There  is  no  need  of  any  papers, 
my  lord — 

L.  C.  J.  Mr.  Attorney,  do  not  oppose  that : 
Let  them  have  Uberty  to  carry  any  papt^rs  tluit 
any  of  their  counsel,  these  gentlemcm  we  have 
assigned,  shall  send  to  him,  or  any  from  him  to 
them  ;  so  as  the  Lieutenant  may  have  first  Uie 
sight  and  jierusal  of  them. 

Att.  Gen,  There  Ls  no  great  harm  in  that, 
though  1  see  not  that  tliey  will  need  any 
pa|)er8. 

jL.  C.  J,  Yes,  their  plea  to  the  jurisdictioa 
must  arise  upon  tact,  which  may  be  out  of  some 
pa^iers. 

Atl.  Gen,  You  arc  assigned,  eentlemen,  but 
to  one  pouit,  the  jiuisdiction  of  me  court ;  re- 
member that. 

Mr.  FoUexfcn.  Your  lordship  is  pleased  to 
say,  That  we  may  vary  in  form  from  what  we 
deliver  to  the  Attorney  General ;  and  Mr.  At- 
torney is  pleased  to  say,  he  will  not  pinch  us 
as  to  form :  How  shall  we  be  secure  no  advan- 
tage shall  be  taken  of  the  form  ? 

L,  C.  J.  It  is  only  as  to  that  particular. 
You  shall  not  be  tied  up  to  the  form  you  de- 
liver to  him.  What  advantages  there  may  be 
concerning  the  form  of  the  plea  you  bring 
hither,  we  will  sec  shall  not  be  taken. 

Sir  Fr.  Wm,  Will  your  lordship  please  to 
afford  us  no  longer  time  1^ 

JL.  C  J.  When  you  are  to  plead  to  the  juris- 
diction of  the  Court  in  a  case  of  liigh -treason, 
and  such  a  treason  as  tliis  is,  Mhat  reason  is 
there  that  so  much  time  as  is  granted  uln^uly 
should  be  given  you  ? 

Sir  Fr.  Win.  Shall  not  we  have  a  coj.y  of 
the  Indictment  neither  P 

L.  C.  J.  You  will  offer  tilings  tliat  are  not 
to  be  granted  to  you,  *  adcaptaudum  popuium,' 


S6d]         STAIS  TRIALS^  93  Chaklbs  U.  loSl^^Pfoeirngs  ^g&imti 


that  ytra  nuy  say  you  are  bardly  med,  and 
iiii<j^htily  straitened  in  this  case. 

Sir,/.  Win,  No,  my  lord,  we  do  not  offer  it 
for  any  such  end. 

Alt.  Gtm,  Gentlemen,  remember  you  have 
not  liberty-  to  plead  any  thin^,  but  to  the  juris- 
diction ot  tlie  court. 

Sir  Fr.  Win.  We  must  submit  to  what  your 
lofdship  orders  in  it. 

Upon  Wednesday  the  4th  of  May,  1681,  Ed- 
ward Fitzharris  was  brought  from  the  Tower 
to  the  King*s- bench- bar. 

CI,  qfCroKn,  Eduurd  Fitzharris,  hold  up 
thy  hand  fwhich  he  did) :  thou  bast  been  in- 
dicted, ana  arrarg^ned  for  high-treason;  how 
sayest  thou  ?  Art  thou  GuUty  of  the  high- 
treason  whereof  thou  standcst  indicted,  and  hast 
hecn  arraigned,  or  Not  Guihy  ? 

Fifzhatris,  I  have  made  a  plea,  my  lord, 
allien  I  desire  may  be  received  and  allowed. 

Mr.  Wallop,  May  it  please  your  lordship,  I 
desire  to  be  heard  a  few  words. 

JL  C.  J.  Would  vou  not  have  the  plea 
ffid?  ^ 

Mr.  Wallop,  I  have  but  a  few  words  to  say 
before  it  be  read,  if  your  lordship  ])lease,  ibr 
ourselves,  or  at  least  tor  myself.  Acconding  to 
the  best  instructions  we  nave  had,  we  have 
drawn  up  this  plea,  and  I  pray  it  may  be  en- 
tered so.  But,  my  lord,  I  humbly  conceive 
we  have  not  luul,  or  for  my  own  part  I  have  not 
hadtliose  iiustructions  that  were  i\i  to  direct 
me  in  tliis  cose.  It  is  a  special  plea,  and  of  a 
uiattcr  tliut  rardy  happens;  and  tiie  nature  of 
this  specLiil  pica  is,  that  the  matter  contained  in 
the  indictment  and  in  the  imjieachmeut,  is  one 
and  the  same  mutter.  Now  I  have  not  yet 
neen,  nor  could  I  come  at  a  sight,  thougli  I 
iU'.sircil  it,  of  the  iui}ieacbmont,  nor  of  the  in- 
dictment :  hut  1  humbly  conceive,  that  by  the 
law,  tiK  this  case  is  upon  a  special  plea,  the  pri- 
apner  ought  to  have  a  copy  of  the  indictment. 
And  I  do  not  say,  that  e\crv  one  may  demand  a 
copy  of  ills  indictment  to  iind  taults  ;  hut  upon 
a  s[)eeiul  plea,  and  particularly  upon  this,  1 
huxnhly  conceive  he  ought  to  lia^e  a  sight  and 
acop>  of  his  iiidietment. 

L,  C,  J.  W  hat,  would  you  not  have  your 
plea  roeeived  ? 

Mr.  Wa'io}^.  Thus,  my  lord:  ifwecanha\e 
no  iainliCi'  instructions,  nor  can  by  any  other 
means  co»ie  to  a  sight  of  tliese  things,  then  it 
is  the  best  pica  we  can  make  in  such  a  case, 
and  1  avow  the  plea  :  but  if  any  tiling  should 
iall  out  amiss  to  the  prisoner  for  want  of  such 
a  sight,  1  pray  it  may  not  he  upon  ute. 

X.  C.  J.  Head  the  plea. 

CV.  of  CroTvn.  "  lit  pnedietits  Edwardus 
Fit/.hurria;  in  propria  persona  sua  \  on.  et  die. 
4|U0!l  ipse  ad  indictament.  pnediet.  res^adero 
4rom|M-lIi  non  deliel,  quia  die.  «(uod  ante  indicta- 
ment. pi-u.ll.  per  .lur.  pned.  in  Ibiina  pned. 
comport,  scil.  ad  Pari.  I)um.  Ueg.  nunc,  in- 
jcohat.  tt  tent,  apud  Oxun.  in  Com.  Oxon. 
viuwiino  priiuo  diu  Martil  Auno  Aegoi  diet. 


Dofm.  Reg.  nunc  trioesimo  tertio»  ipse 
Edw.  Fitxbairis  per  Milites,  Civw  ct 
genses  in  eodem  rar. 


at  omnium  Com.  AngUe,  lerunduin  kgv 
cons.  Plari.  de  alta  Proditionc  ooimin  Mt 
et  Procerib.  hujus  Regni  Angl.  in  eodem 
assemhlat.  impetit.  suit ;  qus  quidem  im| 
in  plenis  suis  robore  et  effect,  adhuc  rei 
et  existit,  prout  per  Record,  inde  inter  Ue 
P^uiiamenti  remaneos  plcnius  liquet  et  «p| 
Et  procd.  Edw.  Fitzharris  uheriut  die. 
alta  Proditio  in  Indictamento  prsHLper 
pra-d.  in  forma  nrxd.  compeit.  specifici 
meutionat.  et  aUa  Proditio  onde  ipw  pn 
Edw.  Fitzharris  iu  Pari,  pceed.  mlodo  ut 
fert.  impetit.  tiiit  et  existh,  sunt  una  et  e 
alta  Proditio,  et  non  alia  neque  divem 
quod  ipse  nraed.  Edw.  Fitzharris  in  Ini 
mento  prira.  nominat  et  prsd.  Edw.  FiHl 
in  impetitione  pnsd.  nominat.  est  ana  et  e 
perwna,  et  non  aliaueque  diversa :  et  hoc  ] 
est  verificare,  Vc.  Unde  ipse  prsd.  Edw. 
liarris  petit.  Judicium  si  Cur.  Horn.  S^ 
super  Indictamentum  pned.  versus  ipsuii 
ierius  procedere  vult,  6ec." 

Mr.  Wiiluimt,  My  lord,  we  humbly  i 
being  assigned  of  counsel  tor  this  geBrtie 
3Ir.  Fitzharris,  that  this  Plea  may  h 
ceived. 

L.  C.  J.  Mr.  Attorneys  hare  you  hsa 
tended,  according  to  the  rule  of  Court, 
this  plea  ? 

Att.  Gen.  No,  my  lord. 

L,  C.  J.  What  is  the  reason  of  that .' 

AU.  Cm.  Here  is  no  more  in  effect, 
wluU  was  offered  four  days  ago,  when  co 
was  allowed  him.  1  sent  £Lit  nivht  h 
them  for  a  c<»py  of  the  plea  :  indeed  vcsk 
at  noon  they  sent  me  this  note,  that  Fitzl 
intends  to  stand  upon  his  plea,  that  he  s 
impeached  in  the  House  ot  Peers.  I  sci 
know  of  them  whciher  they  would  plead 
to  the  jurLsdietion,  or  in  abatement,  €st  in 
they  declared,  they  wou\il  not  plead  to 
jurisdiction,  but  now  I  see  it  is  to  the  j 
diction. 

L.  C,  J,  It  is  so  ;  and  that  he  propos 
plead  at  tirst. 

Att,  Gtn.  It  is  true,  my  lord  ;  but  thus 
sent  me  word. 

L.  C.  J.  And  as  a  plea  to  the  jinrisdictio 
it  coneludi*s. 

Mr.  Wiiltaws.  My  Innl,  wc  have  dos 
that  is  iK)ssi))le  for  us  to  do  in  this  case. 
Court  mrccte<l  us  to  attend  !\lr.  Attorney 
the  suhstan(*e,  and  so  \ie  ha^'e  done ;  bni 
form,  we  Inul  liberty  to  do  as  we  pleased  ii 

L.  C.  J.  You  need  not  ^o  about  to  ej 
it,  that  you  ha\  c  not  done  it  ;  we  chargi 
with  nothhig. 
'      Mr.  H///irt»is.  I  do  not  go  about  to  e? 
it ;  we  do  nut  take  it  as  a  chaise  upon  us. 

L.  C.  J.  All  we  say  Uthis  :  if  Mr.  Attt 
had  had  it,  [K'radvtfntiire  he  might  hare 
sidered  of  a  replication  by  this  time,  or 
lie  would  do  concerning  it ;  but  if  be  hstl 
had  time,  we  cannot  expect  it  from  him. 


STATE  TRIAL$,  33  Charles  II.  \Cn.—Edwari^ FitskarrU.         [2£6 


V.  Hljt,  My  lord,  I  only  beg  one  word 

attor  of  fact,  and  it  ig  material  as  to 

Bt  lo  uig«  it.    We  did  send  several  nies* 

to  geky  if  it  were  posMble  to  be  ob- 

a  ooyy  of  the  Impeacluiient  in  parlia- 

We  neat  to  the  House  of  Lords  clerk 

;  but  they  that  went  down,  tell  us  the 

not  ia  taviD,  or  else  we  had  sent  Mr. 

y  the  whole  plea  at  that  time. 

.  /.  I  QBly  ask  the  qi^ion,  to  see  whe- 

*.  Attorney  hath  had  time  to  think  of  it. 

Gem.  My  lord,  1  think  1  need  not  any 

tfaiv  case. 

.  /.  I'ray  so  on,  Sur. 
Gtm.  Mylto^t  I  do  pray  your  judg- 
poB  it ;  lor  it  is  a  {dea  that  is  insufficient : 
iiiio  lAem  to  bar  you  of  your  jurisdic- 
iwwLj  1  obsene  that  whosuever  will 
plea  to  the  junsdictiou,  if  he  have  any 
to  filnul,  must  have  it '  in  poigne,'  must 
e it  is  a  Cuuit,  or  at  least  most  produce 
sworn,  that  the  Court  may  see  there  is 
I  dilatory  in  the  case.  And  ior  this 
,  it  will  appear  upon  ejcamination  to  be 
fhvolous  plea  ;  for  there  is  no  such 
depending  as  tliis  plea  alledges.  Hut  1 
tfaasa  pk»to  the  jurisdiction  of  the 
',  lail  such  an  one  as  will  plead  such  a 
icmuBt  have  the  record  ready,  to  shew  it 
CffHt,  and  by  the  course  of  law  ought  to 
ready  to  assert  to  the  Court,  that  they 
Mt  jurisdiction  :  so  then  it  is  certainly 
L  That  is  the  first  thing.  Another 
is  this;  with  submission,"!  say,  they 
iMde-i  no  record  at  all,  nor  any  imiieach- 
laU,  as  thu  case  is  ;  for  the  notes  tliat 
K  token,  mv  lord,  are,  they  say  he  was 
^sd  by  the  Commons  de  altn  Prodi- 
;  hat  thut  is  naught.  He  ought  in  his 
ihve  set  forth  his  impeachment,  and 
te  crime  particidarly  ;  (or  either  an 
MM  or  an  im|icachment  tie  afta  Prodi- 
vfekmy,  or  any  other  crime,  is  naught, 
r  allows  it  wit.  He  ought  to  set  ibnh, 
muA  aver  upon  a  recorii,  but  set  it  Ibrtli 
vertu^  or  in  the  substance  of  it ;  and  so 
lo  plead  tlie  record  entirely  as  it  is.  And 
Ase  necessHry  averments  that  cannot 
iae  be  roaile,  the  law  allows  oi'  them. 
thBcase  he  cannot  rame  aiul  aver  upon 
rord  ;  lor  he  haih  set  fortli  the  iniiM;ach- 
Nik  as  it  was,  but  only  barely  dr  ait  a  Pro- 
in  geiurral,  which  tlie  rec^onl  must 
»  as  the  Court  nuiy  jiidjje  of  it,  and  it 
■I  be  iniemled.  If ut  as  they  have  k4.1  it 
■  ttiia  case  there  is  nmhing  of  treason 
id  i»  te  record  averred,  tliaA  can  ina*iid 
'te^  the  same  ;  amf,  mv  lord,  ho  an;  all 
Hhoaoever  pleailH  a  privato 

ri  must  plead  it  as  it  is,  not  in 
a  is  for  tlie  same  matter  ;  for  1 
it  is  naught :  and  we  are  in  your 
hit  this  13  no  plea  to  the  jurisdic- 
MMkai  point. 

k^Mr.  Attorney,  do  you  think  it  pm- 
MHi  k  this  time,  or  will  ^  ou  take  a 
Ivy  OMudar  of  ttMt  ft  Uttle. 


Ait,  Gen.  My  lord,  I  think  driay  it  very 
dangerous  and  mischieruus  in  this  case. 

L.  C.  J.  We  can  give  you  as  short  a  day  at 
you  please. 

Ati.  Gem.  But  to  satisfy  the  Court,  the 
clerk  will  be  ready  with  tlie  Journals,  to  shew 
that  the  fact  is  not  as  they  plead  it. 

X.  C.  J.  Look  you,  Mr.  Attorney,  ^"e  must 
go  on  in  a  legal  and  formal  way,  when  we  hate 
a  plea  put  in ;  therefore  whether  you  will  not 
take  tune  for  a  day  or  two  to  consider  of  thia 
plea  :  you  had  the  substance  of  it,  but  nothing 
concerning  the  manner  of  the  pleading;  they 
would  not  tell  you  w  hether  they  would  plead  it 
in  abatement,  or  in  bar,  or  now :  therefore 
whether  you  will  not  take  time  to  consider  of 
this  pleading  for  a  day  or  two,  pray  connder 
with  yourself. 

llien  the  King's  Counsd  consulted  one  with 
auother. 

Ait.  Gen.  My  lord,  not  only  for  what  I  have 
alrcaily  offered,  but  for  many  other  reasons,  we 
can  f>ee  this  can  be  no  way  a  plea  to  the  juris- 
diction of  this  Court ;  for  upon  any  hn peach- 
ment  or  imlictinent,  the  king  bath  election  to 
proceed  upon  which  he  will :  and  it'  there  were 
ten  indictments  for  one  and  the  same  thing,  if 
none  of  them  are  come  to  a  judgment  the  Ung 
may  proceed  upon  which  he  pleases,  as  in  that 
case  of  fa-ebmd  yesterday  ;  thuugh  the  party 
were  anaigned  and  ready  to  be  tried  in  Ireland, 
yet  the  king  mi^flit,  if  he  pleaded,  try  him 
nere  ;  and  the  king  hath  oidered  it  so  to  be. 
But,  my  lord,  1  take  it,  that  this  is  not  only 
apparently  a  fulse  |>tea,  but  a  frivolous  plea  in 
itself,  being  to  the  jurisdiction  of  thia  Court : 
for  there  was  never  any  thing  of  a  crime  so 
great,  but  this  Court  of  king's-bench,  which 
hath  a  sovereign  jurisdiction,  lor  commoners 
especially,  could  take  cu^nizaace  of  it ;  and  I 
put  it  upon  that,  my  lord.  Never  was  such  a 
plea  pleaded  to  y<»ur  jurisdiction  ;  and  there- 
fore we  pray  your  judgment  upon  it. 

Sol.  Gen.  Iny  lord,  belbre  we  come  to  that 
which  is  the  question,  if  there  were  such  a 

f»leu  ]df»ded  to  the  jurisdiction  as  tliey  would 
lave  this  to  be,  we  humbly  pray  the  judgment 
of  the  Court,  whetlier  this  be  any  such  plea  at 
all  a-s  can  bear  any  debate :  lor  it  will  nut  be  a 
ipiestiou  now,  how  far  an  un|)eachment  de- 
pending is  a  bar  to  your  juris<liction  t  But  the 
«|uestion  is,  first,  wnether  this  be  such  a  plea  ? 
For,  my  lord,  1  do  take  it,  no  man  can  plead 
any  record  in  another  Court,  any  indictment  or 
acquittal  uyon  it,  liy  pleading  it  in  this  form  as 
this  is  pleade<l,  hy  Haying  generally,  that  such 
a  time  in  sucli  a  Court,  lie  was  indicted  fov 
the  same  offence,  and  was  acquittetl ;  yet  thus 
this  plea  is,  and  no  more.  But  he  tliat  will 
plead  uuierjoig  uc^utt^  must  plead  that  such 
a  time  he  was  indicted  in  such  a  Court,  and 
set  forth  the  indictment  and  all  the  proceed- 
ings of  tliat  Court  u|M)n  that  record,  and  then 
it  is  proper  for  judgment ;  such  a  plea  iv 
formal,  and  requires  an  answer,  and  it  will 
be  proper  for  «b  to  gire  it  an  answer :  and 


t67]         STATETRIALS,  33  Chakles 

when  sach  a  pica  is  put  in,  wa  vhall  either 
demur  to  it,  or  i^ivc  it  the  aubwer  that  it  re- 
qaires  of  nvil  iiel  record.  But  this  does  not  rc- 

SuifC  any  [larticuLir  answer,  hri'atue  it  sets 
irth  nu  recurri  at  all  that  we  can  answer  to  : 
fer  it  LS  not  biiflicient  to  say  in  seneral,  that  he 
was  indictftl  and  iiCf|uitte«l,  or  impeached,  and 
tiieo  aver  that  it  was  for  the  same  offence ;  but 
he  ought  to  shew  forth  the  impeachment, 
and  let  forth  in  the  plea  the  recorvJ.  that  upon 
it  you  may  pass  a  certain  jud^jpncnt.  There- 
fore we  hope  you  will  set  this  aside,  as  not 
being  at  all  formal,  or  requiring  any  answer 
to  it. 

Hen.  Maynard.  My  loni,  if  you  please  to 
ooDNoer  in  this  case  what  is  the  question,  and 
what  not.  At  present  it  is  not  the  question, 
whether  if  a  man  he  impeached  of  high-treason 
by  the  Commons  before  the  Lords,  and  tliis 
impeachment  stands  imrcrersed  in  the  Court  of 
parliament ;  I  say,  it  is  not  the  question,  whe- 
ther this  Court  have  jurisdiction  over  this  man 
for  that  offence  ?  but  the  question  is,  Whetlier 
he  hath  jjiut  in  such  a  plea  before  you,  as  will 
put  that  m  qoestion  ?  Under  favour,  it  is  not 
sufficient  for  him  that  will  plead  a  narticulu* 
leooid,  in  bar  or  other  way,  and  maice  use  of 
ity  that  he  pleaded  it  in  general  terms,  but  he 
Blast  set  forth  that  record  as  it  is  ;  be  must 
not  give  you  the  title  only,  or  say,  he  was  in- 
dicted for  such  a  thintr  generally ;  but  he 
must  so  set  it  forth  to  the  Court,  that  if  issue 
be  taken,  the  Court  may,  by  comparing  the 
record  with  tlio  plcn,ju(1;^  Whither  it  be  the 
same  matter  or  no.  \ou  when  he  pleads  lie 
was  impeached  for  the  same  treason,  he  must 
net  forth  whnt  that  was,  that  it  may  »ppcnr  ii 
was  ibr  the  same  tnasan,  and  if  that  bo  partiru- 
kirly  set  forth  as  it  ought,  upon  null  tu  I  Uaord, 
the  question  will  he,  is  there  s'uch  a  record  or  init  ? 
Now  if  he  comes  and  says  he ^  was  iiulirlrd  or 
impeached,  and  not  for  what  in  particular  ;  the 
two  things  that  upon  the  issui-  art.'  to  be  com- 
pared, are  not  made  so  fit  (or  your  ludgnient. 
In  our  law,  my  lord,  if  a  inari  will  plead,  he 
tiee<l  not  sfl  forth  a  ijrcncral  art  of  parliament ; 
but  iflMMvill  pU'fii!  a  particular  act,  he  muht 
set  forth  the  uiatlfT  of  it,  t<i  bring  his  case 
under  the  jiid^uii^nl  of  \\iv  Court  ;  and  whe- 
ther this  be  so  pleaded  or  no,  ue  submit  it  to 
you. 

L.  C.  J.  Pray  l«t  u\r  speak  two  or  three 
wonlstoyou :  do}ou  sp«'ak  it  against  our  receiv- 
ing of  the  pluiii' 

Att.  Gen.  \vsj  my  lord,  we  hope  you  \i  ill 
lot  admit  surh  a  plea. 

L.  C.  J,  That  \%[\\  bo  hanl.  Pray  then  con- 
sider with  yoursril',  A\lM'th(T  ifit  lie  au  insuf- 
ficient plfa  (for  we  willwiy  nothing  at  present 
to  that)  and  if  the  pleji  be  such  that  no  issue 
can  lie  takf.'ii  upon  it  (admitting  it  were  so), 
whether  \ou  should  not  demur  tu  it,  before  you 
dtinand  our  judj^ment,  that  we  may  have 
somewhat  upon  the  whole  before  iis  to  judge 
upon  i^  And  I  specik  it  to  you,  Mr.  Attorney,  to 
this  puriwse,  that  you  may  consider,  whether 
you  shttli  thiuk  lit  to  demur  to  this  pka,  or 


;  whether  you  shall  think  coDvenieiit  to  take  iss 
!  upon  it,  or  to  reply  to  it,  that  ^  it  may  oome  ji 
'  dicially  for  our  opinion ;  for  iu  a  regular  wa 
'  if  a  plea  be  admitted,  it  must  be  ather  demn 
!  red  ti>,  or  replied  to.    Pray  consider  of  it  in  tl 

case  ;  and  we  vtill  give  you.time  to  conuder, 

3'ou  please. 

Seri.  Maynard.  Under  favour,  my  knd,  ii 
'  plea  be  apparently  vicious  when  it  is  up 
I  record,  we  need  not  demur  to  it,  nor  take  taso 
,  for  else  the  mischief  will  be,  we  shall  adnit  i 

that  is  well  pleaded  to  be  true. 
I      SerJ.   Jejeries.    My  lord,  if  your  kvrdsl 
i  please,  I  do  confess  that  according  to  the  nsi 

course  and  practice,  ii' there  be  a  doubt  upon 

■  plea  that  is  n^,  whereon  any  point  in  law  n 
arise,  you  do  put  the  party  to  demur  or  take  i 
sue :  but  according  to  the  common  course  of  tk 
court  in  common  cases,  and  much  more  in  fl 

,  traordinar}-  cases,  and  especially  in  capital  cssi 
I  and  most  of  all  in  a  case  ot  High-lVeua 

■  such  as  this,  if  it  do  appear  to  tnie  oomt  ai 
'  your  lordship,  that  the  plea  is  in  it's  natii 

a  frivolous  plea,  you  do  usually  refuse  to  ada 
such  a  plea,  and  give  judgmeut  upon  it  No 
wc  would  acquaint  your  lordship  with  our  a| 
prehensions  in  this  (»se,  and  we  would  pray  y% 
to  consider  what  the  danger  may  be  upon  nsi 
demur,  if  this  plea  be  frivok>us,  as  it  appeaiii 
be :  for  whether  an  indictment  in  this  court,  ( 
an  Indictment  in  another  court  be  for  ii 
I  and  the  same  olFenee,  and  so  a  bar  to  the  inn 
'  diction,  wc  are  not  so  much  as  admitted  ii 
j  the  question  of  that,  as  this  plea  is.  Wheffi 
according  to  the  course  in  other  ph««,  we  pn 
[  you  would  be  pleased  to  see  the  inconvenifiM 
if  we  should  Ik^  put  to  deuuir  to  it ;  tor  then  i 
',  do  admit  by  tlii^  demurrer,  that  this  Impead 
:  nient  is  lor  one  antl  the  same  thing  ;  and  i 
I  humbly  conceive,  my  lord,  thatls  a  little  dai 
I  gerous.  How  then  will  it  l»e  possible  for  31 
I  ever  to  judge,  that  the  Iuii»eachment  (whiclii 
i  fact  Ls  otherwise)  and  tlie  Indietutent  is  forti 
j  same  thing,  unless  you  will  put  them  to  pum 
'  the  conunon  methods,  how  it  was  in  the  Hon 
1  of  L(»rds,  by  shewing  forth  the  record  ?  M 
;  w  hat  (;an  we  do  otherwise  (it  l)eing  ajiparent 
1  against  the  eommon  fonn  o\'  pleas,  and  mail 
i  I'estly  for  delav  only)  than  pniy  thejudgioe 
of  tli»^  court,  which  we  Iiojm:  will  be  to  reject  ti 
plea  * 

L.  C.J.  lJn»tlier  Jefleries,  you  need  not  I 
<ifraid,  that  you  shall  be  concluded  by  this  d 
nuinvr,  that  there  is  sneli  an  lmiH>aciimcnt 
the  l>oi-ds  HoiLS4',  for  the  sann^  otlVnce :  the 
'  \ull  be  no  eobair  for  it.  And  brother  Mv 
j  nard,  formerly  I  confess,  when  they  idea* 
I  pleas  Ore  tenus,  and*took  their  exceptions  U 
tenus  too,  they  would  demand  jugmeut  of 
plea  pivsently  ;  and  so  it  was  in  the  bishop 
ninehester's  Case,  3  Edw.  3.  where  tM 
was  an  Indictment  againbt  the  bishop  bera 


xWia  c<nut,  for  going  aw  ay  from  the  iiarliaiai 
at  Shrewsbury  without  the  leave  of  the  Laiti 
there  Shard  comes  in,  and  pleads  Ore  tenus  tl 
matter,  and  says,  This  is  a  tiling  tluit  oonotf 
the  Lords  in  Parliauieut,  of  w  hich  they  hi 


STATE  TRIALS,  33  Chahles  II.  l681.— irficuri  Fihkamt.        ,  [270 


ce  only,  and  flo  prays  tlie  jud|;ment  of 
presently,  whellier  tliey  have  juris - 
'the  clause  or  no?  And  lie  pleads  it  in 
t.    There  they  OTer-ruled  him  me- 
ithout  any  more  to  do,  because  ttieir 
;  were  no>  as  now  tliey  are  ;  now  X\\ey 
n  into  a  tonnal  way,  all  entered  upon 
r  at  least  written  in  paper  :    and  wnat 
'  the  reason  why  you  hliould  not  tlo  ac- 
3  the  connnon  course  of  the  court,  I 
>  vou  to  consider  of  it. 
faynard.    It  is   very  true,  my  lord ; 
tlie  course  was  so,  my  lord,  and  the 
»  too,  to  plead  Ore  tcnus  ;  but  plead- 
M;r  is  the  «auie  thine ;  and  the  course  of 
halh  liM^,  when  thev  saw  it  in  paper 
volou!4  plea,  to  g^ive  jmfgmcnt  presently: 
hare  the  same  privileg^c  v\\H>n  this  ac- 
I  they  hatl  when  pleas  were  by  word  of 
If  there  be  a  demurrer,  it  may  hang 
lan  M  convenient  this  cause  should  do. 
J.   Do  not  speak  of  that,  brother  May- 
i  to  delav,  3'ou  shall  take  as  short  a  dav 

rill. 

f  rn.  I  have  looke<l  upon  all  the  pre- 
and  could  ne\er  meet  with  one  demur- 
e  the  plea  \\  as  to  the  jurisdiction  :  but 
our  jud{pnent  upon  the  first  matter, 
mhosoever  pleads  to  the  jurisfiiction 
Ht  hare  tlu-  record  '  in  poii^ne'  to  justify 
Mn  a  plea  in  bar  indet^  it  may  come 
ttimus,  but  in  a  plea  in  abatement,  the 
U^t  alwiiys  to  be  ready  with  tliosc 
that  are  toout  the  court  of  their  juris- 
■nd  besides,  the  court  is  to  maintain 
a  jurisdiction,  the  kin|;*s  counsel  have 
to  <lo  to  assert  thsU,  but  tliey  ou^ht  to 
.  thin<rH  that  may  lie  to  the  Cincf's  pre- 
nd  thi  refore  it  oui;fht  fo  Ik?  by  the  judjjf- 
Ihe  court  in  this  case  set  aside.  But  1 
yon  will  never  fuid  a  demurrer  that  was 
to  the  jurisdiction. 
J,  Pray  consider  of  that, 
fen.  But  if  it  appear  to  be  a  frivolous 
[ie  form  or  in  the  matter,  you  will  not 
are  to  demur. 

/.  If  you  do  insist  upon  it,  that  you 
mur,  nor  do  nothing,  we  will  ^vcjud^- 
Kit  we  will  take  time  to  considcT  it,  it' 
't  demur,  uor  take  issue,  or  rcjily. 
'.  Withins.  Will  your  lordship  pleiisc  to 
s  one  woni  ?  As  it  hath  been  olisen  ed 
•onlship,  this-  is  a  plea  to  the  jurisdiction 
Oft ;  and  if  they  du  plead  a  |deu  of  that 
be  ooart  always  expects  the  pica  shoulil 
uiliaU}'  ^rood,' otherwise  it  is  not  to  bo 
.  Now  it  h  not  substantial!}  jifood  here, 
%  that  Fitzharris  was  in)j)eached  of 
■Hoa:  Now  such  an  Imjieachment 
j$^  ftr  nobody  can  lie  imiteaehed  for 
I  generally.  It  ou^lit  to  come 
the  particular  acts  Uiatmake  up 
^  _ ;  for  toe  callings  of  a  thing  so,  does 
il  k  so :  therefore  they  tlMt  would 
PIIm,  mint  ooime  and  shew  that  there 
that  hath  such  matter  in  it 
to  trweon ;  «o  thtt  tb«o  it  being 


a  nauifhty  plea  in  th.c  substance  of  it,  and  tlie 
end  of  it  to  put  this  court  out  of  a  jurisdiction, 
we  hope  for  that  reason  you  will  not  receive  it. 
Mr.  Sanderg.  One  word  farther,  if  yuur 
lordship  please,  on  the  same  side,  for  the  iing. 
As  for  this  pica  that  he  hath  pleaded  here,  ii* 
it  had  had  sulistaiitial  matter  in  law  whereupon 
to  ground  a  debate,  we  should  not  press  your 
loraship  not  to  receive  it,  but  we  must  get  off 
it  as  well  as  wo  eoidd ;  but  when  it  is  mani- 
festly pleaded  merely  for  delay,  and  it  so  ap- 
peal's to  your  lordslliip  upon  the  reading  of  it, 
and  that'  Uiere  is  nothing  of  substance  in  it, 
then  we  hope  you  will  not  receive  it,  nor  put 
Mr.  Attorney  to  demur  to  it,  or  take  issue  upon 
it.  -  Now  for  the  plea  the  case  is  thus :  Ilere 
is  an  indictment  for  treason  against  Mr.  Fitz- 
harris, for  conspiring  the  death  of  the  king, 
compassing  of  it,  and  declaring  such  his  in- 
tention by  a  venomous  Ubel.  Now  he  comes 
and  pleails  to  out  this  court  of  their  jurisdic- 
tion ;  and  what  does  he  plead  ?  He  says  \\m 
was  formerly  impeached  of  High  Treason  in 
the  Parliament,  tnat  is  all  he  says  concerning 
the  im|)eachment ;  then  he  does  come  and 
make  an  averment,  without  shewing  more,  that 
this  high  treason,  and  that  for  ^liieh  he  was 
impearhefl,  is  the  same;  and  takes  upon  him- 
self to  judga,  whetlier  the  court  will  or  not, 
and  \i  ill  not  submit  it  to  the  court,  which  cer- 
tainly is  not  the  right  way  of  pleading.  If  Mr. 
Fitzfiarris  should  come  and  plead  outer  foits 
ficgui\  tliat  he  had  been  tri(.*d  at  another  time 
for  the  same  offence  and  acquitted,  he  should 
not  have  sai<l  generally  he  had  been  formerly 
indicted  and  acquittcff,  and  tliis  fur  tlie  same 
thing ;  but  he  must  have  shewed  the  record, 
and  then  averred  upon  the  record  that  it  wan 
for  one  and  the  same  crime.  For  suppose  in 
this  case,  M'hich  would  have  appeare<l  perhaps 
to  be  so,  if  he  had  done  as  he  shoidd  have  done, 
.she\^  n  that  there  was  such  an  impeachment, 
wliew»by  he  was  impeached  of  high  treason, 
and  whicrh  impeachment  did  charge  him  witli 
treason  for  le\'ying  of  war  against  the  king, 
and  then  have  miule  a  c<niclusion  as  he  does 
u<iw,  with  an  averment,  that  the  iinpcachmcnt 
and  the  indictment  was  for  om^  ancl  the  same 
offence:  under  favour,  notwitlistanding  liis 
a\  (Tinent,  the  couil  would  have  judged  them 
not  to  be  the  same ;  for  if  so  be  the  reason  do 
not  ftp|»ear  uuon  the  rc'cord  to  be  the  same,  his 
averment  will  signify  nothing ;  why  then  his 
pleading  now  this  iasufticiently  for  want  of  the 
reconl,  will  Ito  better  for  him  than  if  he  luid 
pleadiHl  it  sufficiently.  M'hy  then  if  he  had 
now  pleade<l,  that  thmMs  a  recnmlof  the  former 
imiieacbmeiit,'  and  set  forth  the  record,  and 
then  averred  this  was  for  the  same,  Mr.  Attorney 
might  take  issue  either  there  was  no  such  re** 
cord,  or  said  it  was  another  treason,  and  tra* 
versed  it  that  it  was  not  for  the  same ;  and  so 
there  ivould  either  have  been  c»ne  trial  by  the 
record r  or ^ the  other  upon  the  fact  by  the  <*ouii» 
try.  But  nmv  as  he  hath  made  it,  this  trial 
Utth  u[ion  the  ret'onl,  and  upon  the  fact,  is 
only  txwhle  by  the  oountry,  not  by  the  reoord 


4fflQ         VTAnmAiS,  SSMiALUn.  xeni^Ptocrtdingt 

■   WmWMr.AtHnmytauimatibtlAtniM mo  bk 
.nok  MOM>L  dicB  ril  tha  faeeid  H.  A 

llMiiliiliillflilli'irt  ti    iiii    niam 

Mmft^mT irtiU  tf  ft  be  not  ftr 

ft«MktMt:  MdMDtfeMMflriwttlJrlib- 

Mrrf«MUMtWtakni.    Wbr  Ihwi  mw,  bit 
I«d.  M  to  ifae  Act:  If  ».  Attann  tolH 


kamdiiadiendt  Oaa.  I  n^,  anHttetriad 
WtkaoooobT.  taiW^hmflndedkm, 
lliilijiiMlii  nriiiiiUM  iiiiiiii  iwiwi  ■ntflwbica 
b*  the-emiBtn,  to  nnt  liguoa  bi*  plw  k 
Mwlrt:  mBdifdl•tbeM^  than  the  aaoMnfej 
fZMc4,  ■■ditbmmnl^plMdadoQly  Ar 
(Unr,  bBMoaaba  iRiiiHMH«iiiiettdMpm- 
MjaMUr,  laiifimi  Qalty  wNatChdty, 
irtiebiftliaiiiatlttflfftetiDaatpmpar  tone 
eaa^y.  1  ndw  hape  hehBotcaflMthaii 
Aathab:  bat  if  ke ha goirf ,  tt»  Aeiaeat 
bsfiU  woMBwa  Mmbd  aaara-  ma  tgnmi 
dnUBanaoBu  Ab< ftr  ihat iimbh y— 
lwllMjwffl»itghac— laMDWiaiiiyjay. 
ipd  iMiatoa  wa  |nj  As  Fla»  may  ba  m- 
jaeM,  aid  W  aw  aanRr  over. 

AU.Otm.  Hahatbnatpkaied'malpalit 
*MrBaaeid.' 

X.CJ.  Ym,  ilia  •frootnrtet  hRatalia 
'  FajliaiMotL'  Ha  doM  «ay  Oat  be  wm  im- 
■aacbtd  «f  h%h  trcaaon  by  the  Common  be- 
nm  die  Locda,  aa  upeon  W  the  record*  tbere- 
qf  aanw  lb*  Mootda  of  pariianwnt. 

jUt.  Gni.  1  did  Dot  truly  ranramber  Aat ; 
bat  I  baf  jonr  pardon  if  it  tie  so,  fm  I  liad  not 
■  viMr  ^tba  uIm  till  now;  butlam  ready 
ttai  to  to  vtiny  lb*  eovaH,  it  is  •  pun  AUae 

'"■    '"       ■   '     And  tbenmftmbr'- '- 


1  ottr  it  to  four  oanidnBliDn,  whrthor  yw 
wfll  gin  awy  tnne,  or  pRaeDtly  reject  it. 

£.  C  J.  We  Win  pre  them  uo  thne,  that 
ia  inra^  But  tbe  qucatioa  ia,  Wltether  time 
■hoold  not  be  taken,  not  in  tavonr  of  the  pri- 
aoaer,  bnt  of  the  king  aad  of' the  court? 

All.  Otn.  I  am  ready  to  make  out,  if  it 
wan  neceasary,  th&t  there  ia  nothitiff  uf  all  this 
hue ;  it  it  all  liction  that  ii  pleaded,  and  no- 
diia^  in  tbe  record  to  warrant  it :  I  have  a 
copy  of  the  whole  Jounial,  sod  ot'tlie  trausac- 
tiaoa  m  the  House  of  Lonb,  the  book  is  cloeu 
by  aiid  ready  hi  be  shewn ;  but  when  it  Li  a 
frinriooa  plaa,  I  hope  there  will  be  no  need  ot' 
tkat  trouble. 

L.  C.  J.  But,  Mr.  Attorney,  whether  we 
can  talc*  notice  of  tiie  Journal-book  now,  you 
bad  bea  ctmnder,  as  lliia  case  itands. 

Att.Gtn.  They  oui;ht  to  hare  it  here  rsady, 
dmr  eug^ht  to  have  it  lierc  in  poifae. 

Sut^cajoiui.  There  ba*e  been  rery  manv 
fOed  arsuments  ui^ed  by  vuii,  >>)>oa  whioli 

pwlia[ialliii|ihii  II  ill  III  jmlijiil  J miimii .  but 

tlw  ^uaslkui  is,  Whether  you  ore  now  in  any 
^nh  torn  as  we  can  pass  jadjrment  upon  this 
pl«  w  K»r  llmelbn:  it  beint;  olfcred  to  you 
to  cowto  <£  it,  what  yaa  will  d»  is  il ;  sure 


(hmilri  ci 
y«m  Bfan^>7v<.'tl,  ihen  you  tnayai 

L.  C.  J,  Wt  cEuinot  put  yon  U 
And  aw—  to  bind  the  kinv:  th< 
WtuA  M  it  b;  we  »m  comVtor  of  it. 

JW-gea.  "Bien,  iny  inrd,  I  will  A 

Sal.  wm.  Anil  we  prav  they  may  join  in  A* 
manw  jmnediktely. 

Sajcant /(^iVi.  If  thcydo  nolnieiuillit 
ddi^,  now  fb',  Altonicy  hath  demurred,  I 
■Of  pna  toy  will  Join  deTUumn  immediately 
'fllMlttaaerk  iif  tlie  crown  drew  tqit 
gcicnl  Oonarrer,  which  Mr  A  Homey  signed, 
Mid  it  was  mul  in  the  Murt  by  ibe  dok 
oflkaaim.} 

Jfl.  Qem.  We  pray  tbew  mn  jma  if 
tommr. 

Mr.  IKIKmm.  My  lord,  we  that  arr  aaigMt 
efoaoMri  to  ttlit  gentleman,  tliir  prisonar  ii 
Ae  iatr  (tot  yoor  lordship  may  bu  wtiidld, 
ud^lbatbsarva,  that  we  <lo  not  dnagn  tr 
itmn  to  May  one  minute  in  ihb>  tsusc)  ilo 
totoe,  tot  me  will  join  in  dtmorrer  vilk 


CTbaa  to  clerk  drew  up  the  Joimler  in  Dc 
mnnr,  wbioh  beiuir  nened  liy  lh»  four  gM> 
toitev  of  ettokl  with  Mr.  Fit/hurris,  vna  ite 
rwdineont] 

Alt.  Otn.  My  lord,  I  prsy  vour  jmlgmeBlf 
bere  ia  an  indKlmciit  tiir  t'l-ainini;  a  ireassiiME 
libd ^ 

Hr.  mUiamt.  Hy  bid,  we  hopa  W  M. 
not  be  put ■ 

AH.  Oen.  Pray,  Sir,  hear  wkM  I  Mft, 
My  lord,  1  demt  your  Mgnmi,  OalS 
pi^mayatBiid  orer-ruled  feraphiatoia* 
IB  it.  This  ia  a  particular  nidieliiMat  to  M 
fnmiing  ■  most  peruiciona  nrandllaili;  Ui_ 
against  the  kii^  and  tbe  goTemman^  to  llto-' 
•on  in  that  particular ;  and  1  think  than  k  it 
penon  does  doabt,  but  that  Ibia  ia  a  ■sM'- 
within  the  jurisdiHion  of  thfa  cotvt  M  Mr; 
Tfaere  ia  no  difficully  in  thu.  Wh«  4a  M' 
do  to  out  this  jutisdicticin  r  Iltejr  osn»  ai ' 

5 lead,  that  FitzharriH  wn  impeached  db  a> -' 
'rodifionr. ;  that  is  all  toy  pkad  of  lUr 
treason  in  general,  to  out  the  CMitt  of^a  Jiw 
diction  of  a  particular  treason,  *■—  *  '  '  ■  * 
maliciouH  traituroUH  Ubd ;  and  tt 
Urtrraiion  upontlie  statute  i^th 
king.  Now  they  hare  pleaded  do  p 
treoaou  upon  that  statute  thev  "  * 
for,  nor  up(»i  the  Btatuttftif  th 
nhic^  hath  a  gnuTnl  claaae  of  a  d) 
power,  and  it  may  be  he  waa  imncMfaed  aHB 
that,  and  we  Bhalt  not  intend  K  nllM  i  wJM,  Ml 
being  the  general  law,  tbe  other  but  s  pMl^ 
lar  law  fbr  tbis  king's  lift.  Now  in  «ll  pMI* 
tbcjuriiidiction,  they  ougbt  tobedieslriBItt; 
ami  moM  curtatii  of  any  pieas  wlntMiercr.  tgt. 
aa  I  olFered  beibre  tn  you,  an  I  ^  ilair  ImC 
they  ought  to  be  rewty  with  die  rcnad  WJ# 
tiQ' their  plea:  bat  tliia  in  ahett  I  iBWtif«( 


m,  fur  tonl»< 
id  tbia  is  a  ■■!■' 
i^tbalSttdTd*, 


STATE  TRiALSi  33  Chables  IL  l6Sl.—Edtvard  Fiizharris.  [274 


It  a  court  of  its  junsdiction  for  a  parti- 
ision,  it  »  not  a  tJ^nod  plea,  hy  sayingf 
impeachixl  or  indicted  gfeuerally  of 
umn,  and  no  averment  can  possibly 
For  it  spears  by  the  impi^acnment  it 
'  the  same,  and  it  is  rather  to  be  in - 
lat  it  was  not ;  but  the  inipeachmeut 
Bend,  that  they  went  upon  a  declara- 
er,  in  the  (statute  of  the  25th  of  Edw. 
I  reserves  to  them  the  power  of  deciar- 
on  at  largfif,  and  not  upon  that  which 
ried  here  in  an  inferior  court  upon  a 
r  statute  :  1  say,  my  lonl,  they  ou^ht 
feaded  itcertairily,  which  they  havniflr 
,it  is  fatal ;  and  I  pray  your  jud^eiit 
and  1  hope  they  are  ready  to  make 
ir  plea. 

en.  Aly  lord,  tliat  which  we  do  say  to 
bat  this  pica  is  neitlier  gtwd  in  matter 
;  and  if  it  had  bce.i  pleaded  never  so 
,  perhaps  we  would  have  denmrred  to 
IS  now  it  is  pleaded,  it  is  not  fonnal, 
eibre  we  pray  it  may  be  over-ruled. 
epiioD,  we  take  it  in  point  of  fbnn,  we 
fatal ;  for  there  is  no  man  tliut  pleads 
■wot  or  an  impeachment  in  another 
a  must  set  ibrdi  tlie  indictment  in 
t,  which  is  nut  done  in  tlus  case,  and  we 
I  to  be  fatal  to  it.  For  a  man  that  will 
\itrftntz  arou'U^  must  set  forth  the  iii- 
t,  and  all  ttie  proceedin<^  of  the  court 
at  indictment ;  this  is  the  constant 
\  in  all  cases,  and  particularly  in  \'aux'8 
e  fourth  report.  Wlioevcr  will  plead 
in/a  acquit ,  must  set  forth  the  record, 
it  will  require  an  answer  to  be  given 

J.  What  do  von  say  to  it,  gentlemen, 
■Hotaining  ot  your  plea. 
ITiUiBmi.  This  is  that  we  say,  my 
V^ek»|ieyour  lordship,  and  the  court. 
CMC,  will  not  tie  us  up  presently  to  come- 
^  tliis  matter.  One  thin^  1  would 
t,  becau^  it  hath  1>ceu  said  tncre  never 
ha  preci'Jent ;  I  think,  to  tliis  nurposnt, 
nedent  of  EliiutV  case  is  ver}'  iidl  in  it. 
omey  is  pleased  to  say,  he  never  found 
r  plea  to  tlie  jurivlietion  did  c^  er  require 
mer,  but  was  o\er-niled  or  allowed  by 
rt  presently  ;  but  that  ca^e  is  plain  U) 
nry  uptm  that  very  matter.  It  was  an 
ent  brought  a^^ainst  Elliot,  for  some 
canors  comniitu-d  by  lam  in  the  House 
■001 ;  this  being  pfcaded  to  the  juris- 
if  the  court,  the  Attomej'-Genpnd  at 
■i  said  it  was  not  to  be  received ;  that 
I  Mttter  he  in.si*4ed  on  then,  that  it 
^  njected :  but  the  court  did  then,  as 
■Mr,  over-rule  tlu:  atUimey  in  it,  and 
llidenur. 

L  J.  We  have  dene  tlie  same  for  you. 

VtAisMf.    Then,  my  lonl,  here  is  a 

Ml  thrt  Mr.  AlTdruey  hath  not  set;n  : 

w.  the  court  in  th;At  case  did  not 

,  vp  to  ar|rue  the  plea  presently, 

m  time  till  the  next  term.    \V  e  ask 

|ph|a  thing  of  tlu  court,  as  so  Jobg  a 

•fui. 


time  in  this  case,  only  Iiere  is  a  man's  life  in 
question  ;  it  is  indeed  for  treason,  and  so  it  is 
of  consequence  to  the  king;  and  there  is 
also  the  privilegt?  of  parliament  consequently 
concomed  in  it.  What  time  your  lordship  and 
the  court  shall  think  n^asonahle  ibr  us  to  be 
ready  in,  wc  Vxave  it  to  your  lordship ;  we  de- 
sigfn  not  to  debiy  at  all,  only  we  (k'sirc  a  n^a- 
sonable  time.  Your  lordship  did  in  the  case 
uf  Piunket  give  him  time  for  his  trial  till 
next  term,  which  is  as  high  a  treason  as  this^ 
I  am  sure. 

X.  C.  /.  You  would  have  [teople  think  you 
have  strange  measure  in  this  case,  that  you 
have  not  the  same  time  given  to  you  that  was 
given  to  Piunket :  Pray  consider,  you  olgect 
these  things  as  though  the  court  were  hard 
upon  you,  to  tie  you  up  in  poiut  of  time.  Is 
your  (^ase  like  Plonket's  1^  Pray  pve  us  leave 
to  clear  our  accounts  as  we  go  along :  He  ia 
brought  from  Irehusd  hither,  is  indicted  for 
what  he  did  in  another  king«lom,  and  it  is  by 
law  he  is  so  indicted  indeed  ;  for  he  beii^  kept 
close  prisoner,  and  not  knowing  what  time  be 
should  be  brought  to  a  trial,  he  desires  time  to 
send  for  his  witnesses,  who  are  to  be  brought 
over  to  dear  him  of  tlie  treason.  Could  we  in 
justice  deny .  it  him,  or  could  there  be  shorter 
time  than  next  term,  given  him,  when  his  wit- 
nesses are  in  another  kingdom,  and  it  ivould  be 
a  fortnight  or  three  weeks  before  possibly  he 
could  have  his  witnesses  here  ?  Tills  I  mention, 
Ik'  *ause  you  nill  needs  make  use  of  such  a 
case,  that  is  no  more  like  yours  tlian  any  thing 
that  is  the  farthest  diiferent  from  it ;  yet  you 
will  have  tiie  case  to  mcasm-c  with  your 
case. 

Mr.  WiUiamt,  My  lord,  1  know  it  is  in  the 
discretion  of  the  coiirt ;  and  as  your  lordship 
did  what  %vas  just  for  Piunket,  so  you  will  to 
this  })erson  :  1  know  ynu  a«  ill  do  what  is  rit^ht 
to  every  body.  We  arc  c<nins('l  assigned  by 
your  lordshijr,  and  we  doubt  not  but  your  lonf- 
ship  will  be  just  to  us,  and  give  us  a  reason- 
able  time  to  arsfue  it. 

X.  C,  J.      l^ok  you  by  tlie  way,  Mr.  Wil- 
liams, I  must  tell  yon,  wlicn  wc  assigned  coun- 
sel to  3Ir.  Fitzharris,  we  expfK?te«l  that  coun- 
!  sel  should  consider  the  plea,  so  as  to  be  able  to 
j  maintain  it,  when  they  come  to  plead  it  here  ; 
I  for  that  reason  we  gave  him  time  to  plead  it,  so 
us  he  would  stand  by  it :  What  neeiled  we  else 
t4>have  assigned  him  so  iniioh  counsel  in  such 
a  ease  as  this  is,  but  that  he  slifutld  l>c  n^ady  ? 
And  why  you  should  now  ho|nj  that  wc  will 
give  you  a  longer  time  for  arffumrnt  in  such  a 
case,  I  see  not.     (*onslder,  wnether  in  disc*rc- 
tion  }  ou  think  lon;^er  time  ought  to  be  expected 
uiion  such  a  plea  us  this  is  ? 

Sir  F.  Win.  iVIy  lord,  we  will  not  take  upon 
us  to  prescriije,  nor  to  mention  any  time  in  par- 
ticular, we  leave  that  to  the  dis4*rction  and  iu«l;>-- 
nieiitoftlie  eoiirt;  hut  tliis.  I  think,  we  nny 
pray,  urcording  tu  the  duty  \vt;  owe  tu  tiuV 
cllcut,  ii^»on  \<iin'  lordslsip's  :iss!:;-iiii|(r  us  of 
counsel.  We  cimiM  not  fon  :»cf."  nli  to-day. 
uliui  the  LiML;''i  counsel  \\ovdd  do;    whether 

T 


I 


9fi-\         9TA'rt  TRIALS^  S9  Cuun 

Hr.  AUsraey  would  take  iMaa  npta  w  «r  wtll 
tftlRtatr^iarufanvtjvtomamnaeBl:  Wa 
cmU  bm  fivetto  whether  he  wmU  dentor  M 
r  not.  I  know  year  lonUup  will  be  ■ 
'~iU«  to  u  ••  joa  c —  -■•^— ^ — ■■ — 
,arrislitoflIiaeei 
r,  end  wenU  hwe 

isaH  i|ient  in  fbrmita^of  the| 
t  pceftare  peiticulwi 

w 

pcoent  may  dd*y,  aa  any  penont  coold  be  in 
ear  coaditiOD ;   ihcnAre.  b  bht  be,  we  bare 

■'         a  off      '        ' 


HMrweaeewberetbedoubttdiiUeapooit;  it 
U  «  matter  of  law  pleaded  to  ^  jnriadicMoa  of 
the  eomt.  I  do  not  indeed  brre.lo  dto  preee- 
denls  upon  wiMt  ia  pUn ;  bat  witfad,  I  do  not 
lave  le  Hj  thii^  i^on  a  eodden  an  pUe  wfthr 

__.  j_^ —   1—  j-i-  J  ^u  ^-  M  it  ia 

.       d,itkftcaMiw^ 
s  of,  and  jreua  loo ;  I 
■nnataajritwiihyiNirlanUim^lewe.    IVie- 
fare,  if  m  tbe  eaae  of  my  kwd  SeUia,  whieh  wM 
Imt  ^OB  an  infiNrm«ta»^  and  Am  hot  ftr  ft  mis- 


n.  1811— :Pni'iii>hi'iijMi«        («■ 

uid  wliat  we  tiuiT  c»U  m- 

I,  lutth  luaiie  bd  alleratioD  finn 

d  we  liiuubtv   )iray  ^^  mif 

B  accordiD^  to  the  nUe  of  om. 

tneiiee.      My  Innt,   whereas  ihcj  tn 

toeaB  it  a  fnToInuK  pli^a.  I  helineil  If 

tt  Ike  gteaxesl  'uap"n  that  ever  tluae 

ten  rawT  here  ahout,  ivliaUne>er  llMy 

pleaaed  to  mv.      Rut  your  lonlahip  knmN 

die  He  of  •  mni  Li  the  ^reawiA  rarnunle  ta 

law;   and  O^t  t<i  be  ■  most  ancient  uidwin 

nde,  ■  De  marte  hsnunia  nulla  est  cunrtalie 

'  longa.*     And  tiitne  we  oould  not  muoniMv 

espoet  m.  be  Aoiighi  to  cimc  i>ravii1rf|  ia  thn 

"■ — Hj  pray.lhit  your  Innltthip  wfll 

tuuonaUe  time  an  jonr  loiifaUf 
ahall  think  iSt 

L,  C.  J.     Cobip,  let  me  propose  ihia  lo  yon. 


Iheooh  tt  waa  a  pka  directty  to 
.  of  tbeeoiut,  and  certainly  mey 
pRpved;  for  they  were  aH  at  fibor^,  and 
bed  raaort  to  all  papen  and  bookabefimthe 
plen  pleaded,  which  we  could  DM  hare;  yrftfae 
oonrt  was  pleaaed  to  laaign  them  thne,  and  give 
diem  a  li^  time,  I  bc^  we  ahall  bave  aome 


JboaU  have  so  Iod^  time ;  but  I  humbly  be- 
aeecfa  yow  lerrinhip,  that  we  may  do  our  duty 
lo  the  eoait,  aral  to  our  clieet,  that  we  may  hare 
a  fittle  time.  It  in  true,  it  is  a  great  and  a  bor- 
lid  treaaon ;  but  it  is  as  true,  here  'a  Ibe  Hie  of 
a  man  (xmcerncd  in  it ;  wc  affect  not  delay  at 
all,  but  hope  you  wiD  not  deny  us  what  lime  is 


migfat,  if  .you  bad  pleased,  hare  entitled  your- 
adtM  belter  to  have  had  time  to  speak  U>  the 
plea,  if  you  had  pleaded  over  to  the  treema  ; 
llien  we  could  hme  fpven  you  time  to  lisTe 


■pofccn  to  it,  anil  not  tielayoi  the  king;  at  all 
iHit  you  haTe  thoinfht  ht  not  to  plead  over. 
WUst  cODless,  I  did  eir^ect  yon  ivould  havB 


iheught  yuu  wouM  ;  thLTcfore  having  not 
dtoie  it,  it  ia  in  nur  coDsideratiiin,  whi'iKer  we 
will  giTe  you  time,  and  what  (iim,-  We  will  gii 

JO.I, 

Mr.  Walti^,  It  ia  under  your  Indship's  fi 
four,  according  to  the  usual  course  of  modem 
pncticc.  I  luLve  been  an  uaprufitable  all 
ml  here  near  forty  years,  and,  (or  my  part,  1 
did  ne>'er  yet  sec  so  swifl  a  procecdini;  as  this 
ianow;  it  is  as  sniti  as  ligliiniug.  It^sn  very 
eitiaordiiiBiy  lliiiig';  w-l-  niigliE  well  oi>nc  " 
that  uothiu;  more  xhuuM  hu  expected  fru: 
than  what  is  ujual,  and  thnt  wa  should  not  lif 
iHilOlrtof  the  ordinary  proceedings.  ADciontly 
mdoed,  aa  yuur  lordship  did  obnerre  the  other 
day,  ihey  pleaded  ort  Unmi,  and  then  the  pn 
fwdhiga  weiN  nry  quick:  now  indeed  it 


WiD  yon  plead  ei 

"-  Patle^.     My  Inn).  I  nlll  giveyria  M 
la  that,  Vi'e  cannot  dn  it.      U'hrnw* 


we  ilid  confer,  wheiko  If  et 
ii  would  not  ilesirny  tbe  piM, 
itiininn.  that  it  Mould  imOBf 
Kit  plrarl  orer,  but  WC  girvap 
I)  a  as  iiitlilTcrent  ami  Bghl 
to  me,  aa  any  luxlv,  to  lie  furred  inameil 
now;  bat  aa  Id  the  mati< r  ot'it.  1  belierea»- 
bodycan  aaylbcv  Fvfr«;iw  many  nMnatstl 
the  like  natmv':  'fhenHbre,  pi-ay,  my  lord,U 
ua  not  go  OB  ao  hastily  with  it.  tor  weconMiMl 
fbreaee,  what  nncc  we  know,  how  H  wouM  ll 
with  ».  I  didnot  think  ihey  uinild  hatedfr 
murred  ;  but  nrmr  \i  ^  come  In  thul,  wemml 
make  the  beat  uf  It.     V>e  hare  pleaded  Ah 

K'  a;,  if  you  will  not  he  pWsed  ID  ^fe  H 
ye  and  time  tii  lie  jin'pnri.-il  to  argiie  it,  joii 
must  take  it  at  ive  iire  nbic,  Kitice  we  mnna 
have  time  to  maLe  ounivtvu;^  alile. 

£.  C.  J.  Certainly,  Mr.  PoHexftn,  Ufim 
mn  vilr,  it  would  not  hurt  die  phn  to  |M 

All.Cen.  jtlylord,  ifyotu-torddnpllHIl 
to  fannir  me  a  word  in  tbiscaae;  I  bea^NM 
ml  things  urged,  particularly  inataacfaciaBi 
dem  prutice.  If  that  gentleman  iA  1^ 
that  in  any  caw  the  kin<T  aind  tbe  eooH  mm 
indulgent  to  give  four  days  to  plead  to  tlM  jali 
diction  of  tnu  court,  then  he  wiQ  ahow  M 
something  of  modem  practice,  which  IknM 
not ;  but  if  that  geutksnan  will  ii  iiiiiiilaa  ill 
dern  practice  in  a  great  nobleman's  CMa^  H 
whum  he  nas  of  counsel,  it  was  luld.Ui^irk 
wuuld  debate  (he  point  of  law,  be  moM  m^ 
pres«itly  :  they  never  would  give  Um  tinn'l 
prepare  lor  his  argument,  there  whbaM^ 
raudtrn  practice  tlien.  I  would  dnroUMl 
give  me  one  instance,  that  when  gendewrf 
aasi^ied  of  cminMil  to  plead  a  matter  to  dM^ 
risdictiou,  and  deal  so  with  the  kmg'seiMM 
OS  lltey  have  dealt  with  ua,  not  to  let  ua  aaatt 
plea  tillium';  the  modem  practice  hath  hMh 
Efive  them  any  time.  For  tham  to  any,  ttl 
they  could  not  foresee  what  we  wdoUM* 
coiild  tht>v  not  IbrcKee  the  pointa  cf  bv 
Couldthey  not  foresee  a  plain  case  r  bntlto 
do  nut  take  otf  tbe  great  mtter,  that  ha  tit 


then,  v>\wi\  they  hare  put  in  a  plea  upon  g^ruat 
f*onsi(lenitioii,  do  man  is  to  tliink  that  they  aro 
unready  to  maintain  it.  Our  exception  is  ^hort, 
and  they  do  but  talk  in  c^nenil  tcrmai  that  they 
are  unprepanil ;  and  they  have  no  rcuson  to 
ex[)ect  this  kinfincss  from  the  court,  especially 
since  thc^'  used  Mr.  Attorney  at  this  ratt>: 
They  gave  him  not  the  p)ea,  but  only  a  note  to 
tell  fiim  they  woid<i  do  that  which  they  Kuid 
four  days  before,  and  no  more.     If  they  had 


]  STATE  TRIALS,  53  Charles  II.  l6Sl.^Edward  Fiizharrit.         [278 

plead  to  thejunsdktioii,  ought  to  hare  (he  ,  they  would  put  in  this  or  any  plea,  witiiouthav- 
d  resdy  in  hiB  hand ;  but,  my  lord,  we  lay  iug'  considered  betbrehand  ^uiat  to  do.  And 
humbupon  that  which  is  our  exception  ; 

have  pleaded  no  impeachment  of  any 
;,  that  can  appear  to  be  the  same  with  that 
iiich  they  are  indicted,  that  is  the  |>oiiit. 
ve  auch  difficulty  ?  Did  not  these  learned 
men  think  ?  Cuidd  they  not  foresee  that 
oald  kmk  into  their  plea,  that  it  sho'uld  be 
?  therefore  I  did,  and  do  pray  your  judg- 
If  they  had  pleaded,  and  st^t  iortli  the 
1  truly,  as  it  is,  and  as  it  ought  to  l>e  set 
,  in 

Q^hav 
K  dsae  burpofieiy , 

I  am  uola  to  say,  for  these  gentlemen 
r  kovr  to  plead  a  record  as  it  ought  to  be, 
nw  thia  oui(ht  to  be  pk-ailtnl  to,  tu  out  the 

of  n  junmrtion  of  a  |mrticuhLr  crime. 
'  aay,  the  Ute  ot*  a  man  w  concenicd,  and 
die  peace  of  the  kingdom  conceniul  too, 
e  life  of  aii  great  a  traitor  as  ever  was  tried 
wtminafpr-hall.  For  if  his  treason  had 
I  effect,  oertainlv  the  kmgdom  had  been 
embroiled  in  civil  wars  by  this  time ; 
the  whole  peace  of  the  Icingdom  de- 


pretend  ne  are  surprised  for  all  this  usage,  ^%e 
see  the  plea  here,  and  uesee  the  faults  of  it, 
and  we  have  demurred  to  it,  and  tell  tliem  our 
exception ;  sure  they  are  better  prepared  than 
it  is  possible  for  the  ting  to  be,  yet  we  arc  ready ; 
and  we  hope  you  will  cn-ant  them  no  longer  lime, 
^'rj-  Jtjfhiet.  Will  }oq|:  lordship  be  pleased 
to  spare  me  one  word  :  1  tVonder  at  what  Mr. 
Wallop  s(;ems  now  to  urge  concerning  the  life 
of  a  man  that  is  concerned  in  this  case  :  it  is 


true,  the  hie  of  a  man  is  concerned,  m  hich  is  a 
s  ipon  hu  life,'  and  it  dei>enrls  ^ijion  the  ■  dear  thing  to  the  law  ;  but  ceituiuh  toe  life  uf 
nif  sfthe  whole-niatter.  And  I  challenge  I  the  go\erument  is  more  dear  to  the*goveniment, 
I  ViBi  >f  t^y  <^"  «liew  me  imy  instance  j  and  all  courts  of  justice,  thun  the  Ule  of  any 
bike  nature.  Tliat  of  Eliot's  case  that '  one  single  person :  And  1  am  sure  this  one  per- 
amrioped,"  it  was  an  infnniiation ;  and  to  '  sun  hath  done  as  much  as  in  him  lies  to  strike 
'  DpQB  inlbrmations  there  have  been  de-  j  at  the  liit^*  of  the  gr)\  ernmcnt,  in  case  this  be 
tn,  but  to  indictments,  found  by  twelve  ;  iriiotimt  is  laid  to  his  charge.  Now  Ut  make. 
do  not  meet  with  any  denmrrcr  •  this  cuse  like  to  Plunket^s  tlie  other  day,  is 
to    a  plea   to    the    jurisdiction.  I  strange  :  I  think  your  lordship  hath  given  au 


we 


I  pray  your  juffgment,  tliat  he  may  pica*!  I  acco.nl  of  that:  Fc»r  hath  he  pleaiied  Ut  the 
■a ;  for  it  is  but  a  respondes  ouster^  and  fnct,  not  guilt\ ,  as  Plnnlu^t  diil  i*  We  that  are 
hBK  gentlemen  desire   to    take  time,   1    of  the  king's  counsel  would  in  common  charity 


!  jta  will  not  delay  the  king  by  giwng  h<»ue,  that  he  is  not  guilty  ;  but  I  am  aure» 
ionee  to  such  a  p£iin  im[»erfect  plea ;  ti>r  if  lie  b<  giiiltv,  no  tlitglisliniau  can  think  that 
e  kigJb  matters  they  t:ilk  ot,  that  will  be  the  j  hi'  di-.t  r\es  to  live :  W  hy  then  should  we  be  so 

rre,  they  can  ne\er  come  in  (piesiion    fonit  of  a  man's  life,  th:n  hath  lieen  guilty  of 
plea.    *  .  snch  a  fiK'tasthis  :*  For  example  sake ;  sunly 

yUofOfaeral.  My  lord,  f  have  but  one  '  it  that  be  the  thing  in  riuestioii,  \\c  ought  to  have 
void  to  that  whurh  is  now  in  qne.stion.  sp;*edy  justice  eie< 'tiled  upon  a  man  that  de- 
ficeptions  to  the  pica  we  ofleivd  and  open-  .  ti'.*n'(^  iio  mercy.     Your  lonUhip  was  pleased  to 


bre ;  the  qiu*8tiou  is  now,  w  hetlier  they 
iate  time  U>  argue  this  plea  ?  And  the  ar- 


take  notice  of  another  circunislauee  in  the  ca^e 
of  Flunket ;  He  was  indiet«'d,  he  was  aiTuigned 
they  use  for  longf:r'tiine,iN,  the  life  of  j  and  wits  to  have  had  his  trial  in  Ireland,  and 
If  and  they  roidd  not  Ih*  pi*epjred  on  a  i  was  to  fetch  his  witni'sscs  fitim  thence ;  all 
n,  because  they  knew  m»t  wlial  we  viould  |  tlu^nhings  were  in  that  e:ls<^  He  desinnl  time 
For  the  hastv  proceedings  that  ha\e  Iwrn  j  to  consider  what  he  ithould  |)U*:id  ;  hut  your 
iCMe,  iikhicli  they  clainoiir  of,  I  think  i  lortLship,  tinding  an  iiidictiueiit  t<)nnd  against 
have  litik;  reoMMi  to  s|ieak  so,  since  that!  him,  arcdrdini;-  to  the  rules  «f  justing  over- 
ktm  done  in  tliis  caM'that  nt^er  nas  done  ;  ruled  tliat  matter  he  suirgesteti,  and  made   him 

tMhcr.  lie  hath  hail  three  ilays  time  to  !  plead  n(»t  guilty,  before  iwv  you  adiiiittetl  him 
r,  nhether  he  uiil  plead  to  the  jnrisilie-  |  to  debate  any  thiug«if  that  luet.  .\\u\  ihen  it  ap- 
f  Be  court,  which  iK'ver  nu.s  done  to  an\ ,  penriniftoyourlord&liiptobein  aiMttherkingiloiu, 
Igraat  a  favour,  that  he  is  scarce  entiti(*d  lo  .  and  1  hat  il  was  impossible  in  re'^ard  of  the  hu/.anls 
Ihvour.  Does  any  man  iM'lieve  that  of  the  winds  and  s«.*as,  to  g(*i  over  his  witnessed 
prepare<l?  Do  no;  gentlemen,  when  !  in  a  little  lime,  \  our  lordship  g:i\e  him  time; 
V  uf  a  plea,  consider  upon  what  '  hut  you  gave  bini  as  strait  a  time  as  could  l>e 
Ihey  plead?  Aiul  docs  not  that  let  <  .»n^»istent  \«ith  the  rules  of  justiee  snd  as  his 
■  the  whole  matter,  where  the  neak  |  cave  would  bear.  Now,  my  lord,  this  Inking  of- 
hft  plea  are,  and  nhat  may  he  objected  ttred  in  a  ease  of  that  e\|)eet:iti>)n  which  the 
;?  lam  sure  that  thcM' gentiehien  nre  ('Xrarliefore  you  seems  to  liave,  we  dcsin^  tlie 
"      '    I,  that  no  luau  docs  btlie^c  |  dispatch  ot  it  as  much  as  \\c  can.     In  uise 


2751 

BIr.  Attornpv  u  • 
iul  Retord^'itr  r 
oouM  nut  tui 
m,  or  not.      f 
fkTOtiralilf  t>« ' 
fiapcfni,  or  "if 
oessarVf  nm) 
our  tin  If  \\- 
and  wf  c'Mi' 
]au-  to  ()"ti 

eX|M;<-ti 


STATF,  T' 


%M>~.  •■^- 


..^  _c 


•uV 


..• 


pn  It'll  J  .. 

ha«l  u 

1M»\V    .1 

is  a  h. 
ill*'  • 

i;« 
%^ 
I 


J.  i. :'  my 
.    I-  '.wo. 

utii^D  the 

.*..    .♦"-«  is 


1 


.  %     .il  •♦€  hear 

.itjfc    111  we  hear 

^       . ■*.'.>iaiwfing  thi' 

.  ^1  I'S  liie  as  wf 

.    »,    t.   :«und  iriiiliy. 

. .  ^.    j»i  t  a*  any  so  irmt 

.:*.  "M  oiusidtT  of  this 

^,  t4,.o?  ihey  pray  it. 

•v  uitini'  t<i  give  thein  a 

..*^.;«r  Mi'  Lt.  and  !iee  what 

..«i  -iii>  ptea.     Rut  thru 

.^.   \KHi  must  take  notice 

•cdti  presently  alter  our 

'i\   ■••111,  we  hare  nothinsc  to 
lit>  t.'tt'^e  ;  \ye  are  onl^   to 

•^•iv  hn«*thcn  iff  \w)r  liir 

.   i»^  .icc:>iun  i#l'  this  pV.i  ? 

.,vi  K  ■ .   '.Ir'V  iii»  not  sjn'jik  as  to 

.     ..   ia.-.;irU'his  lili;,  hut  \\u'  «»///- 

,*Mi  .'tc  ikrision  «»nt,  suj-posinu" 

^..i  •'^f  i!k' pita.     TluTi'f.ui*.  AJr. 

^  v-   /ki  k  til  topvi?  hiiii  till  IVi- 

■.!   i\\?.\    III'   sliJiII  he  brou::l;t 

.»  .    .i;  .  :i  '»y    the    111  iitrnant    *•!'  thr 

uii  v»c  w'il  h«u*  tlu'-e  ^eiiiUuU'ii  : 

.^  ,     ..'  •:.!!  >\u'W   us  any  convirfr'.-alfle' 

^     .  "iKiiiii.'-iii  the  plea,   tlity  Hi U!>t  expect 

.  V  i»    i«,'»t'ii'y. 

,.    Tha!  reit:inly  will  he  tr>o  long"  a 

.IV.  my  Idnl,  »he^  oii«^hl  to  ha\elK>en 

^  ^,  V    ..  ..*     iiihi  \  uiil  !*<•  pi.  a>f:ii  to  Im'  rira^'y 

..  ..!•»»  uiomin;,'",  J  pray  il  may  jjo  ott'to  no 

^. ...»*..  .«it'e. 

».%.  .c  .'»»i«.  There  is  a  i;«cfs'^itv»  n\\  lord, 
I.    ^  111.;!  it  iihoiilil  Ih-  ku  ;  f.ir  thoru  is  a  \nn^ 

41  :iie  Iwr  Ihtc  on  Krida  v  . 
%t      ]\  iliiams.  'I'hat  is   u   \ery  short   time, 

\.Ni»Ci*  JoiKS.  You  uuist  he  re  ady  to-morrow 
■^  >  titt  1^ ■ 

\tj  Wii'iims.  I'lihsK,  m\  |f»rd,  you  will 
^,*cu'**4  little  more  tuiir,  yoi  had  as  tr«M>d 
.  :ti  u^  no  time. 

*    /    t*.  J.    It  seems  tin-  hiisiiu  s:-*  of  llu-  Court 
Ik  mu!i,    on   l'Vida^\    monniiiC   \  .mi  cannot  he 

beasd* 

J w^lliTv  Jonci.   ICiiher  it  uuist  l»e  to-morrow 

^i^rtiuu;  or  Saturday,  aud  that  is  £xcbe4[ucr- 

^JliOibier  day. 


?4 1 . — Fre€eedin^s  agtaift  [C 

vh.  (jtn.  3Iy  lord,  I  belief  e  dwy  are  not 

L.  C.  J.  Mr.  An«niei-.  We  wookl  eiTe  th 
I  r^ra^npaMe  tinie  ;  but  Vet  we  woufd  do  i 
uiiitf  that  lui^ht  make  unncceanry  delays 
nts  case. 

Att.  Gin.  I  pray,  my  lord,  let  it  henolonj 
th.-'.n  till  tu-morpiw-.  ^ud  that  es  more  than  e 
was  i^iveu  in  such  a  case.  I  know  it  was  < 
oied  ui  my  lord  !!»taff'*jni's  case  ;  titer  woi 
not  eive  the  crtuDs^-I  any  time,  but  woilld  mi 
theuj  argue  presently. ' 

L.  C.  J.  A^  t«»  that,  Mr.  Attorney,  en 
case  Ntani'iS  upijn  lis  own  b«'»ttnm. 

S^ri.  J/?r/if<.  >I\  lofd,   we  hare  voor 
rcction  i'or  to-in«/rniw  morning'. 

Sir  Fr.  If'iv.  No,  no,  my  lord,  we  h( 
not  «o. 

/..  C".  J.  Look  1-ou,  gentlemen,  to  accoi 
niodate  yon.  the  i.'oiirt  doe«  think  tit  thus 
do  :  we  HJil  h'*  here  on  KatiinSay  by  sei 
o'chM'k  in  the  morninc".  On  Friday  we  can 
nothing,  for  theieis  a  kmg  ti-ial  at  bar  that  i 
take  up  our  time  ;  hut  on  Saturday  we  m-ill 
heix-  \i\  eight  o\-lork  stttini;^.  and  expect  yon 
be  here  by  thai  time :  ami  we  cannot  afic 
vou  then  king  time  to  a>^ue  in,  because  it  is 
ll.\f:hrf|uer-C  hatuhcr  day. 

Att.  (Jfn.  It  judgment  lie  a^inst  the  pk 
they  niiu»t  plead  p!r:«eRtly  then,  that  we  m 
not  li><»e  the  tei  ni  tor  a  trial. 

/..  C.  J.  \f»\i  must  take  notice  of  that,  1 
tl.e  rules  of  ti;e  Court  thev  must  do  it,  S 
Altormy.  If  our  ladguuni  be  ag'ainst  thei 
the  eiMirseof  the  enuit  is  so,  we  cannot  rule 
one  way  or  othir. 

Strji.  Jrlhri'-  Hut  then  they  ouijht  not 
pn  tend  they  lla^e  no   n<itiee,  their   witness 
are  out  of  die  v.n\ .  .ind  s'>  liinder  the  triaL 

Justice  ./..ri(%.   \'»,  No. 

Fi*zhnrri>.  .^iy  hutl.  I  d»"iir**  I  may  hi 
these  !t:rds  cnjpi,  to  nw  ;  uiy  lord  of  Ess« 
niv  lord  Salisimrv,  iua  !ir.d  uiavor,  vour  lor 
ship,  and  sir  Hiik'rt  (.lauon,  to  |>eriect  n 
ilistHnerv".  1  haie  jw-mtthinj^  to  discover 
your  ionlsliip  and  them. 

L,  C.  J.  \  inii-  disc^cry  of  what,  do  y 
mean  :* 

Fiisii.  Of  the  riot,  and  'd"  the  murder  of  i 
bdnmniil)ur\  (i<M!li-«>\ . 

Is.  C.J.  '\Sv  «1'«!  rvnuiir.p  v^"  about  t 
imnder  of  sir  ICdiiUU'.dlMiiy  (icMifrey. 

i'lLzh.  ^'(-ur  ii>4i!>liip  went  away  in  hasi 
lietore  1   had  ti.l'l  all  \  could  say. 

L.  C  J.  We  a*»ked  you  ii-n  times,  whetl 
you  liad  any  more  '.u  s.y,  and  \u\\  said,  No. 

y'*:h.  y\\  loni,  i  V  IS  in  oonfusiou  and  co 
sliTitaiion  ;  I  se.iue  knew  Avhut  yourlord&l 
said  (>)  me. 

L.  C.  J.  ^^e  v\eiv  uoi  in  haste  ;  we  ask 
you  olien  that  ri.estioj!. 

Fi^zli.  It  wr.s  haste  lo  nu!,  Iiecausc  I  n'as  I 
pro\iilef!  ot'tiii-  ipiestions  *.  ou  asked  me. 

Jiistici!  Dvtbt  It.  To  souic  of  the  questions  t 
aske<l  yor,  you  answertnl  readily  and  freelj 
hut  to  some  wc  coidd  not  \gsX  a  positive  aniw 
hy  any  lucaus. 


281] 


STATE  TRIALS,  33  Charles  IL  iGSU^Edward  fitzkarris. 


[282 


Att,  Gen.  My  lord,  he  told  me  he  was  not 
in  England  tbeD,  and  that  lie  knew  no  more 
iban  what  he  had  discovered. 
Fiixh.  Did  I  tay  so,  Mr.  Attorney  ? 
Ait.  Gen.  Yes,  you  are  the  man. 
Fitzh.  I  can  brin^  20  witnesses,   I  did  not 
teU  y«»a  so  ;  and  I  can,  Iniug  500  witnesses, 
Ibt'l  was  in  town  then.' 

L.  C.  J.  lieutenant  of  the  Tower,  take  your 
moner,  and  be  here  before  ei^ht  o'clock  on 
bturdav  momxn;^. 

Sir  I'r.  Win.  My  lord,  now  I  desire  we  may 
kifc  a  cony  of  the  whole  record. 

L  C.  J.  Not  of  the  indictment,  but  of  tlie 
flra  aaA  demurrer  you  may. 

Sr  Fr.  Win.  But,  my  ibnl,  I  hope  you  will 
kl  iha  indictment  be  read  upon  Saturclay,  be- 
Xr.  Attorney  had  fixed  his  exception 
put  of  the  indictment,  which  is  the  libel 
calls  the  particular  treason,  and  1  desire 
ilaay  be  in  Court. 

L  €■  J.  It  shall  be,  and  if  you  have  any  oc- 
CMB  of  reference  to  it,  we  will  look  upon  it ; 
veHtiU  upon  our  oathn,  and  muRt  take  heed 
tew  pnjiidice  be  done  to  the  kini;^,  as  well  as 
It  tee  die  prisoner  have  no  uniair  thing*  put 


Ita  the  prisoner  was  carried  back  to  the 


QtaSitarday  the  7th  of  May,   1681,  Mr. 
^* — '-  was  brouffht  to  the  bar  of  the  Court 


tf  Kki^Vbeocb,  about  eig^ht  o*clock  in  the 


Sr.  WUliami.  May  it  please  your  lordship, 

I  VMgned  of  counsel  for  this  person,  Mr. 

ViUkHiii,  the  prisoner  at  tlie  bar. 

^J^-  Gtn,  My  lord,  if  you  please,*  I  will  only 

kH^Hmaint  them  with  what  our  E.Yccptions 

i^MUicy  may  apply  themselves  to  them. 

LCJ.  Look  you,  i^ntlenien,  I  must  tell 

^  iB  our  time  is  strait  enough  for    this 

■Mkr,  ibr  we  are  all  of  us  to  be  by  and  by  with 

jtfce  Judges  in  the  Exchequer- Chamber ; 

*8Rfire  we  pray  this  of  you,  we  will  abrid^^e 

^■n^s  speaking  what  is  material  for  this 

fal,   but  we  desire  you  will  keep  to  the 

Mkr,  and  the  points  in  ouestion  between  vou, 

^  nve  our  time  as  much  as  you  can. 

Att.  Gen,  That  is  the  reason,  my  lord,  why 

1  vrndd  hy  my  finger  u|»on  those  points  that 

*flbe  the  qufstions  between  us.     Now  the 

bontions  1  take  to  the  Pk*a  arc  tlicsc  :  this 

■•  plea  to  the  jurisrliction  of  the  Court,  and 

IM  of  our  RxceptKHis  are  to  the  form,  and  one 

■  Itthe  matter.    To  the  form,  my  Exceptions 

^Jikne :  fimt,  we  say  that  the  general  alle- 

Nm  tliat  be  was  impeachctl  dc  alia  Prodi' 

inr  b  mioertain,  and  too  general ;  it  ou^ht  to 

tot  been  particularly  set  out  that  the  Court 

Shi  judge,  whether  it  be  the  same  crime, 
il  M  mjI  bellied  by  the  aycmient.  And  the 
JHnoepiMiD  I  taketo  it,  is,  liere  is  no  im- 
MkBCBlalledBed  to  be  upon  roooni :  I  men- 
JM  this  the  last  time,  and  kiokuur  more 
iBttljiBtoitylfinditissoasIsaid:  n>rthey 


come  and  make  a  general  aUegation,  that  Fitz- 
harris,  such  a  time,  was  imjieached,  *  Impe- 

*  titus  fuit,'  by  the  Commons  before  the  Lords, 
'  Quicquideni  impetitio,  in  plcno  robore  existit, 

*  prout  per  recordum  inde,'  &c.  Now,  my  lord, 
there  is  no  impeaehmcnt,  mentioned  betbre : 
and  *  qnie  quidem  iiniietitio'  is  a  relative  clause, 
and  if  there  be  no  impeachment  mentioned 
before  in  the  plea,  then  there  is  nothing  averred 
upon  the  record,  to  be  continued  or  disconti- 
nued ;  for  Impetitio  does  not  actively  signity 
the  impeaching,  or  passively  the  person  im- 
peached, but  it  signines  the  indictment  or  im- 
peachment, that  instrument  which  contains  the 
accusation,  and  wliich  is  to  be  and  remain  upon 
reconl.  Therefore,  when  they  come  and  say 
he  was  impeached,  and  afterwards  allcdged, 

*  Quue  quidem  Impetitio'  remains  upon  record, 
that  cannot  be  good.   If  a  pica  should  be  *  Indie- 

*  tatus  fuit,'  and  allerwards  they  say  *  quod  qui- 

*  dem  Indictamcntiim,'  &c.  it  cannot  he  good, 
for  the  relative  there  is  only  illusive.  These 
are  our  exceptions  to  the  form.  For  the  matter 
of  it,  it  is  a  jdea  to  the  jurisdiction  of  the 
Court ;  and,  with  submission,  there  the  point 
will  be,  whether  a  suit  depending,  even  ni  a 
superior  ('ourt,  can  takeaway  the  jurisdiction 
of  an  inferior  Court,  who  had  an  original  ju- 
risdiction of  the  cause,  of  the  person,  and  of  the 
fact,  at  the  time  of  the  fact  committed.  What 
use  might  be  made  of  it,  as  a  plea  in  bar,  might 
l»o  of  another  consideration ;  but  whether  tnis 
be  enough  to  make  it  amount  to  such  a  plea, 
as  will  take  aAvay  the  jurisdiction  of  a  Court, 
that  had  an  original  jurisdicti(Mi,  that  is  the 
question  before  yon.  TIicso  are  tlie  exceptions 
I  take,  and  do  insist  upon  :  and  I  desire,  my 
lord,  the  counsel  will  apply  themsi^ves  to  these 
exceptions,  to  answer  them;  and  when  we 
lia^e  he^rd  what  they  can  suy,  I  hope  to  give 
them  an  answer. 

Mr.  Williams.  My  I>nrd,  I  am  assigned  of 
(counsel  for  the  pri<K)iier  at  the  bar,Edwai'd  Fitz* 
harris,  who  is  indicted  here  tor  high-treason,  and 
hath  pleaded  a  special  plea  to  the  jurisdiction  of 
the  court :  and  I  ini*stci*ave  leave  to  state  his 
case  upon  the  indictment,  the  plea  to  the  indict- 
ment, ami  the  <lctnun*er  to  the  plea.  And  the 
case,  iiiy  loni,  upon  the  whole  record  stands 
ihuH :  he  was  indicted  this  term,  by  one  of  the 
grand  juries  for  this  county,  of  Iffisj^h-Trcasou. 
As  to  the  Indictmcut,  it  caimot  be  exjicclcd  I 
should  state  the  parts  of  it,  it  being  an  Indict- 
ment I  never  saw.  To  this  Indictment  tJiua 
ftresented,  Fitzhanis  Imth  pleaded  thus :  That 
le  ought  not  to  be  compelled  to  answer  to  this 
indictment  because  thai  bcftire  the  ludictinent, 
waii  found,  at  a  parliuinoiil  held  at  Oxford  the 
Slstof  March  last,  he  wa<«  impeached  by  the 
kni^fhts,  citizens,  and  burgesses  of  the  Ilouse 
ofCommimK  in  paiJianier.t  awembled,  in  the 
name  of  tlieiiiselves,  and  of  all  the  Commons  ol 
England,  of  High -Treason;  and  that  this  wai 
liefore  the  court  of  liOnls  in  that  |>arliament. 
He  says  farther,  that  this  iniijea(*hinent  is  re- 
maining in  full  force  and  eficct  before  the  Lords 
in  Parliament,  *  prout  per  recordum,  inde  inV 


283]         STATE  TRIALS,  33  Charles  IT.  l6Sl.--Pro€iedingM  agakui         [2S^ 


Record.  Parliaroenti  remaDOis  plenius  liquet  eC 
«pparat.'  These  are  the  words  of  the  plea: 
and  then  he  avers,  that  the  Hijrh-Treasoii  men- 
tioned  in  the  Indictment,  and  tne  Hig^h  Treason 
qiecified  in  the  Impeachment,  are  one  and  the 
•anae.  And  he  furtlicr  avers,  that  he  is  the  same 
Fitzharris  named  in  that  Indictment,  and  men- 
lioaed  in  the  Impeachment..  And  ailer  the  aver- 
ments, ho  concludes,  to  the  iurisdiction  of*  the 
court :  whether  upon  all  this  matter  they  will 
proceed  any  farther  against  him  upon  this  in- 
dictment ;  and  demands  the  judgment  of  tlie 
court  to  that  purpose. 

Upon  this  plea,  Mr,  Attorney'  hath  demurred 
generally,  and  we  that  are  ot  counsel  for  the 
prisoner  liave  joined  in  demurrer  ^rith  him. 
Now  in  this  case  which  thus  comes  before 
yon  for  your  judgment  U|)on  tliin  pica  and 
this  demurrer,  1  take  these  tilings  to  be  ad- 
mitted. 

First,  That  tlic  prisoner  stands  impeached, 
hy  the  Commons  oi  England  in  parliament  as- 
ficmbled,  of  High -Treason.  Secondly,  That 
Che  impeachment  thus  made  by  the  Commons 
ID  the  name  of  themselvirs,  and  of  all  thv 
Commons,  of  Englan<l,  before  the  Lords  in  par- 
liament, for  treason,  is  now  in  being.  Thinlly, 
whidi  I  omitted  in  the  opening  of  the  plea,  that 
this  was  done  *  secuiid.  legem,  et  cons,  par- 
liammti ;'  and  being  so  remains  *  in  plenis  snis 
robore  et  efiectu."  And  more  particularly  this 
plea  does  refer  to  the  reeonl,  for  t  nc parts  and  cir- 
cumstances of  the  Impeachment  Uself,  <  prout 
patet  per  record .  incle  inter,'  ^c.  S(»  that  it  does 
refer  the  lm|)eachmcnt  itself  to  the  record,  and 
tells  you  this  is  amon^the  other  records  of  that 
parliament :  all  this  is  admitted  by  the  pica. 
Fourth!}',  And  moreover,  that  this  treason,  for 
which  he  stuiids  iinpeaclKNl  before  the  Lords, 
and  the  (r(•:i^oll  for  which  he  stands  iiidictefl 
before  this  court,  are  one  uiul  the  same  treason 
and  no  way  di\ers<' ;  and  so  they  arc  the  same 
numerical  thiiii(,  and  there  is  no  m:uiiicr  of  dif- 
ferent :  and  tiiat  thi«i  jK.reon  Fitzharris,  now 
indicted,  and  the  l-'lt/imrris  impeached,  are  one 
and  the  saiur  person,  and  no  wav  di^  t'l'sir.  AimI 
withal,  my  lord,  it  appi-ai-s  ]ilainly  upon  the  ro- 
f^ord,  that  this  liii[>c:ichnicnt  was  dcpendjirjf 
before :  the  f  ndiclincnt  found  for  the  parliunicnt 
was  the  21st  of  March,  and  it  appears  by  the 
record  this  is  only  an  Indictment  of  this  term. 
And  another  thing  1  must  intrcat  }0U  to  ob- 
serve, my  loni,  it  docs  not  appear  biit  that  this 
parliament  is  still  in  being,  for  any  thinp^  to  the 
contrary  in  the  reeonl,  and  as  I  take  the  case, 
then  it  must  1m>  admitted  so  to  In?. 

tte  then,  I  take  the  plea  to  he  in  substance 
thus,  though  Mr.  Attorney  was  pleasi-d  to  ex- 
cept to  iMrtii  the  snlwnmce  and  the  foim  ;  but  in 
substance  the  case  is  tfuis:  here  is  a  person  im- 
pcacheil  in  parliament,  by  the  Commons  in  l*ar- 
tiament,  for  Hi;xh-'i'rtVson,  before  thel^nls  in 
l\irliament,  and  for  a\ight  appears  that  Parlii»- 
ment  still  in  being,  and  this  Im|»eachnient  still  de- 
pending; then  here isan  Indietnientforthatvery 
treason  :  whether  your  loi-dship  now  ^^■\\\  think 
fit  In  thJB  court  to  [nDcce* t  u^>on  tliat  indictment. 


is  the  substance  of  the  case.  I  ahan  speak  ti 
the  form  by  and  by. 

My  lord.  By  the  way  I  think  it  will  not  b^ 
denied,  but  that  the  Cktmmons  in  parliameaj 
may  impeach  any  Commoner  of  treason  be^ 
the  Lords  in  parliament ;  1  take  that  to  be  ad< 
mitted.  And  I  do  not  find  thai  Mr.  Attonie| 
denies  it,  or  makes  any  doubt  of  that ;  tor  i 
think  that  was  the  case  of  Treailian  and  Bel« 
kiiap,  who  were  impeached  in  pviiament  by  tb 
Commons  before  the  Lords :  I  am  sure  mj 
Lord  Chief  Justice  Vaughan  does,  in  his  Re« 
ports  in  Bushel's  Case,*  say  so ;  and  upon  thai 
Imjieachment  of  the  Commons,  one  of  thcsD 
was  executed,  and  the  other  banishedi  in  par 
liamcnt.  My  Lord,  I  cite  it  not  roerrilyy  but  ] 
cite  it  as  authority.  Indeed  I  do  not  go  so  fti 
M  to  cite  tlie  Faruament  Roll,  it  was  in  the  timi 
of  Uichard  II.  I  have  not  seen  the  RoUof  bti 
truly,  but  I  am  stire  it  is  upon  tlie  Roll,  and  thai 
it  is  to  be  found. 

Since  then  Impeachments  of  Commoncn 
will  lie  in  parliament,  here  then,  my  Lord,  wil 
be  the  question,  Whether  this  court  may jpn»- 
ceed  upon  an  Indictment  tor  the  same  oSteoei 
the  [larliamcnt  was  for  ?  And  here  I  shsU  dis- 
tinguish upon  Mr.  Attorney  :  he  does  sJknr  thi 
parliament  to  be  a  superior  court ;  hut  admit- 
ting that,  he  says,  though  it  be  so,  yet  the  in- 
ferior court  hanng  oji^ial  jurisdiction  of  tha 
pci-soii  and  the  caiLsc,  it  may  proceed  notwith- 
standing an  indictment  in  the  suiierior  cooit ; 
and,  ergo,  he  does  infer  that  this  court  rmj 
proceed  upon  an  Indictment,  noCwithstandiBg 
an  luijieachment  in  parliament. 

My  Lord,  i  will  compare  a  little  the  rase  of 
an  Indictment  and  an  Ini])eachment,  and  slieir 
how  inauifostlv  they  differ.  I  do  take  the  ease 
of  an  impeacfiment  not  to  be  the  case  of  an 
indictment,  and  so  the  prinf:iple  that  Mr.  At^ 
tornev  hath  taken  is  wrong,  an<l  the  ground  id. 
that  argument  wrong.  1  cannot  say  it  is  like 
the  case  of  an  ap|H:aI,  but  I  may  say  the 
ca>:o  of  an  appeal  is  like  tlie  case  of  an  im- 
peachment. For  in  an  ap|»eal  of  murderi 
though  the  indictment  be  capital,  and  the  sams 
that  is  given  upon  criminals  prosecuted  fur  the 
king,  yet  it  is  at  the  suit  of  the  |»arty,  as  in  this 
case  it  is  at  the  suit  of  the  Commons ;  and  as 
it  is  an  intimation  of,  and  analogical  to,  aoi 
ho^us  the  rcsen\bliinc4;  of  an  impeachment  in 
parliament ;  i  Avill  not  compare  au  impeack- 
iiiejit  to  an  apfH'al,  hut  I  will  say  an  appeal 
imitates  an  ini[uachnicnt.  And  it  is  as  plain  as 
can  be,  l>ecausc  appeals  are  proper  tn  courts 
in  U'estmiDstcr-hali,  and  it  is  at  the  suit  of  tbs 
|>arty,  the  prosecution  and  all  the  process  ia 

*  ud  instantiqu)  partis ;'  so  is  an  imjicachmenl 
at  the  suit  of  the  Commons.  An  indictment  ii 
f(»uiid  u\Hm  the  pnfsciitiuent  of  a  Cirand-juijt 
who  are  sworn  '  ud  iiupii  rendu  in  pro  Domino 
'  Ucge  pr(»  Cor]>on;  Coui.^  and  it  is  a  mistaks 
in  the  form,  when  it  is  snid,   ^  et  pro  Corpora, 

*  Com.*  for  it  is  not  for  the  king  and  the  bodjr 
of  the  county,  hut  lor  the  king  for  thcliodysi 

■  ■        ,— —  1^ 

*  See  i^ol.  6,  p.  9Q9,  of  this  CoUcctiou. 


2«5]  STATE  TRIALS,  35  Charles  II.  iSbU-^Edward  Tiizharrlu         [28(> 


riH>  connt  J.    But  now  an  impeachment  in  par- 

liatnient  is  othenrise ;  it  is  not  in  tlie  name  of 

tbc  kmf^^  but  in  the  name  of  the  Commons  in 

PiriianMiit,  and  of  all  the  Commons  in  Eiig[- 

Und,  wherein  it  suits  with  an  appeal,  which  is 

at  the  suit  of  the  party  ;  so  tnat  it  is  like  an 

appeal,  and  not  like  an  indictment:  an  iiidict- 

vciif  is  for  the  kins;',  an  im[H.nicbnient  for  the 

people.     And  as  it  is  in  its  nature  and  consti- 

ntioo  different,  ao  it  is  in  the  prosecution  also, 

for  that  is  by  the  Commons  of  Eng^land,  tliev 

ve  the  prrMerutors  in  effect ;  but  now  in  all 

ndicliiients  they  are  prosecuted  al^vays  by  the 

kbs's  attorney,  or  by  some  person  in  tbc  name 

if  the  king'.    "^Ve  are  now  arpiin^  u|i<m  the 

BetMs  and  forms  of  parliament,  therefore  I 

mrt  crave  leare  to  inust  \x}^m  those  nieth(Nls 

BMre  peulicularly.    The  Commons  they  hriii^ 

^  the  impeachment  to  the  Lonls,  tlise  Com- 

BOBftthev  prosecute  the  imi>eachment,  they 

Moa^  the  evidence  u|)on  the  trial ;  and  when 

ihe  iMtlii  have  consiilered  of  it,  and  have  found 

Ihete,  the  Commons  come  and  demand  judg- 

■KBt,  ud  judpiient  is  ^fen  at  the  prayer  of 

fte  Commons,  and  no  otherwise,  and  there  are 

M  fmmdings  by  the  attorneys.     Indeed  there 

katcWa  attempts  by  attorneys  to  prosecute 

ynuM  in  parliament,  by  exhibiting'  infonna- 

tiMi  a  Itie  parliament ;  Cut  what  success  they 

kive  had,  1  leave  to  them  to  considor  that  arc 

naoeraed,  and  have  read  the  Rolls  of  Parliu- 

■oiL    But  it  is  not  safe  to  alter  the  old  ways 

■Tpviianient,  therefore  I  take  it  under  cm- 

VHlHB,  that  it  is  out  of  the  road  of  com[mri- 

■aif  when  they  will  conipare  an  indictment 

■in  impeM-hment  tocher ;  for  they  do  not 

^ff^  but  differ  extremely. 

IwBoUthen  offer  you.sopne  reasons  why 
I^QMrtoii^ht  not  to  proc^l  uiMm  this  in- 
M.  Itake  it,  \%  docs  not  become  the 
if  this  ciiurt  to  weaken  the  methods  of 
in  parliament,  as  this  court  will 
^Statlj  do :  for  if  you  will  admit  this  to  be 
fkeoMunL  that  I  have  o|ienc<1,  vour  pniceod- 
*St  vil  aher  it.  ^Vheu  there  fs  an  im)>each- 
■nf  depending  in  |wrliament  for  treason,  if 
par  loruship  will  admit  there  may  htt  an  in- 
vtoKitf  here  afterwanls  in  this  court,  and 
fwredin^  in  this  court  uimn  that  indictment, 
<■  tn  alter  the  nietho<l  cd'  parliament- proceed- 
^^  anil  to  sill  ject  the  methtNl  of  their  pro- 
MbAh^  tliereto  the  proceedings  of  this  court ; 
■iahat  the  mischief  of  that  will  be,  I  mu«t 
kMeto  your  lonlship.  As  I  opened  it  before, 
^mainA  nf  both  courts  are  different,  and 
Ur  pmceedin^  very  much  \'ary ,  I  think,  I 
■Mi  IOC  tn*ub&  your  lonlship  with  that ;  we 
'kSMT  it  very  well  in  the  main.  Indictments 
hllii  eonrt  are  to  be  tried  by  a  jury,  where  a 
must  be  ipvcn  presently :  there  is  but 


e^UfBUle  time  fur  yn^'i"?  ^^^  evidence,  or  for 
■b|^  observations  for  the  crown,  or  for  the 
;  and  in  order  to  briu^  it  to  the  trial, 
nwi  be  an  immediate  plea  of  Guilty,  or 
■i Coihy .  Now  if  the  pniceedinofs  of  purlia- 
■M  wm;  so  Midden,  there  might  be  a  i^eat 
^liie,  and  great  offeoden  piM  unpuntfhcd. 


because  the  prosecutors  had  not  greater  time 
to  inspect  the  reconls  that  might  wi  of  avail  in 
the  case:  therefore  in  parliament  it  is  quite 
otherwise ;  there  is  time  for  deliberation  and 
(M>nsider<ition,  there  are  many  references,  and 
many  examinations,  which  are  matters  of  de- 
liberation and  consideration,  which  take  up  & 
great  deal  of  time ;  but  hei-e  you  are  straitened 
not  only  in  time,  but  b(»und  up  to  strict  rules, 
anil  so  are  straitened  ]sx  your  methods  and 
{  forms  of  proceedings,  al  Mr.  Attorney  would 
'  here  tie  us  up  to  the  fdrnis  of  little  courts :  but 
it  is  not  fit  that  the  justice  of  the  kingflom,  and 
high  court  of  parlianiont,  sliould  be  cramped 
by  the  methods  of  an  inferior  court,  and  % 
jury.  So  yow  will  tlien  subject  the  methoda 
of  pi-oceedmgs  in  parliament  to  the  courts  in 
Westminster-hall,  and  what  the  consequence 
of  that  will  be,  is  Avorth  the  consideration. 

Another  reason  I  would  humbly  offer,  is  this, 
my  lord  :  The  parliament  is  tlie  supreme  court 
ceilainly,  and  tliis  court  is  every  way  inferior 
to  it,  and  it  will  be  strange  that  that  supreme 
court  should  be  hindered  by  an  inferior :  for 
the  highest  court  is  always  supposed  to  be  the 
wisest ;  the  Commons  of  England  in  Parlia- 
ment are  supposed  to  be  a  greater  and  a  wiser 
iKMly  than  a  Grand-jury  of  any  one  county. 
The  Peers,  wli(»  ^re  the  judges  in  thai  court^ 
are  supposed  to  be  the  wisest  judges,  as  the 
Conmions  the  wi*<eKt  inquest.  Will  the  law 
of  England  now  suffer  nu  examination,  im- 
peachment and  prosecution  for  tn^ason,  to  be 
taken  out  of  the  hands  of  the  greatest  and 
\s  isest  inquest  in  England  ?  And  will  the  law  of 
Englund  suffer  the  judicature  upon  this  prosi*- 
cution  to  he  taken  out  of  the  lianiis  of  the  wisest 
and  gi'ciitest  judicature,  and  put  it  into  llie 
power  t)f  a  smaller  nundier  of  judges,  or  of  an 
uiferior  jury?  I  do  think  it  does  not  stand,  mr 
lord,  wit)i  t1ic  wisilom  of  the  go\ennnent. 

Another  thing  is  this,  my  lord,  tbe  common 
argument  in  any  eMraoniinar}'  case,  there  is 
no  j)rec(Klent  for  this  uay  of  proceeding ;  it  is 
my  lord  Coke's  arirunient  m  his  0>mment 
upon  Littleton,  fol.  108,  and  in  the  4th  Inst. 
!  tol.  17,  in  his  Coinnifut  u|H»n  the  High  Court 
I  of  Parliament.  And  he  takes  occasion  to  speak 
!  itui>oii  the  account  of  that  precedent,  the  case 
!  oftne  indictment  ngaiiint  the  bishop  of  Win- 
I  Chester,  aud  of  that  against  Mr.  Plowden  ;  and 
j  he  s;iys.  This  was  never  practise<t  liefore ; 
therefore  it  ought  not  to  l>e :  so  he  infc-n;,  and 
puts  a  hhu;k  murk  umin  it,  by  saying  it  is  a 
dang<M*ous  attempt  for  inferior  courts  to  alteir 
or  meddle  with  tne  law  of  parUaments.  For 
the  wrmls  I  refer  myself  to  the  b(N»k,  I  dare 
I  not  venture  to  lepeut  them  uiN»n  my  memory, 
I  So  in  this  case,  in  rcganl  ttiat  it  never  wat 
!  done  frr>m  the  IH-Hfinning  of  the  world  till  now, 
the  :>3d  year  of  this  king^  I  may  say,  it  being 
without  prec<Mlent,  there  is  no  law  for  it. 

My  lonl,  there  is  unother  misihief  that  will 
certniidy  follow  upou  this,  and  that  too  runs 
upon  this  couijiarlson  of  an  appeal  and  of  an 
indictment.  In  the  case  of  an  indictment,  it  is 
in  the  power  of  the  prim  re  to  pardon  that  ju- 


S87]         STATE  TRIALS,  33  Cn arles  IT.  iGSL^ProceediugM  ag&bui         [281 


dictment,  to  [MunloD  the  punishineDt,  and  to 
pardon  the  oflTcnoe ;  but  in  case  of  an  impeach- 
ment, I  take  it  to  be  otherwise,  as  it  is  in  the  case 
of  an  appeal.  And,  my  lord,  if  your  lordsiiip 
will  take  this  case  out  of  the  power  of  the  par  • 
liament,  and  brin^  it  into  this  court,  where  the 
offence  may  be  panloned,  3'ou  do  bv  tliat  means 
subject  that  offence,  and  tliat  metho<l  of  pro- 
ceedinflfs,  which  ^lould  make  it,  without  con- 
tent of  the  party  proeecutin^,  not  pardonable 
by  law,  to  a  pardon :  tuid  this  may  be  of  dan- 

Serous  consequence  to  the  public,  tliat  crimes 
lat  are  heinous  and  gresA  in  themselves, 
mighty  bulky  crimes,  fit  for  the  consideration 
of  a  parliament,  be  they  never  so  great,  never 
•o  dangerous  to  the  government,  yet  kIiouU, 
by  giving  this  couit  a  jurisiHction,  and  |H)s- 
sesamg  it  of  these  causes,  expose  them  to  the 
will  of  the  prince ;  and  so  those  crimes,  which 
are  impanlonable  by  methods  of  proceedings  in 
parliament,  wouUfbecome  pardonable  by  pro- 
aecntion  m  this  court. 

Now  my  lord,  for  my  authority,  that  im- 
peachments are  not  pardonable,  I  would  only 
fiint  a  little  to  compare  it  to  the  case  of  an  Ap- 
peal, as  Penryn  and  Corliet^s  case  in  3  Croke, 
Hill.  38  Eiiz.  ful.  464.  Tliere  was  an  appeal 
of  murder ;  upon  \»hich  he  is  found  guilty  of 
manslaughter,  and  not  guilty  of  the  murder. 
Tlien  there  wasa  panlon  pleailcd  of  the  burning 
in  the  hand,  or  of  the  pnnisluueut :  It  Ls  n(it 
plain  in  ^le  bo<^,  whether  the  panlon  Avas  alW 
the  verdict,  or  before  (tliat  1  cannot  be  clear 
in) ;  but  however,  there  was  a  Question  whe- 
ther the  queen  couM  pardon  the  burnuig  in  the 
hand;  liowevcr,  it  uas  thcix;  allowetl:  But 
there  was  an  exception,  my  lord  Coke,  who 
was  then  Attorney- General,  took,  that  the 
king  could  not  panlon,  if  it  had  been  an  appeal 
of  homicide  ;  and  he  conouireil  with  the  Ciaiii 
in  that  opinion.  lUit  that  apjteal  being  for 
murder,  and  the  verdict  of  uuuihlanghter,  they 

Iiassed  over  the  question,  for  this  reason  thut  I 
lave  mentioned.  That  tlie  appeal  was  not  lor 
manblanghtcr,  it  was  for  munlcr ;  and  if  ho 
luul  l)eeii  fountl  guilty  of  the  inunler,  it  Avas 
not  in  the  i>ower  of  the  king  to  pardon  him,  it 
being  at  the  suit  of  the  party  :  So  the  opinion 
of  that  book  is,  and  of  the  then  Attorney- 
General. 

Thus  I  have  state.l  tlie  thin;j:,  and  the  conse- 
quences of  it,  and  it  is  not  fit  lor  me  to  dwell 
upon  it :  You  will  consider  of  it,  I  am  sun:. 


him,  that  no  person  ought  twice  to  be  brought  ia 
question  for  one  and  the  same  thine,  and  to, 
my  lord,  you  make  a  man  to  run  the  riik  oi 
his  Hie  twice,  by  indicting  him  in  thn  coot, 
where,  though  he  be  acquitted,  he  may  bi 
called  to  an  account  affain,  if  the  law  be  w. 
And  if  the  Lords  m  ParliameDt  should  be  d 
opuiion,  for  they  are  the  judges  of  that  caH^ 
tliat  the  acquitod  will  not  be  binding  to.then^ 
then  a  man's  life  is  brought  m  queotkin  tma 
upon  the  iBame  account. 

My  lord,  I  now  come  to  this,  the  time,  h&m 
unseasonable  a  thing  it  is,  ami  how  dnngeraH 
to  the  government;  I  take  it  to  beacrilieil 
tiling  now  at  this  time  to  make  such  attemnli 
as  these  are.  There  are  lords  now  tint'kii 
under  impeachments  of  treason,  the  higfam 
treason,  1  think,  that  ever  was  contrived ;  md 
ujion  this  impeachment  one  lord  hath  been  oon- 
victed  and  executed.  Suppose  upon  the  diiso- 
lution  of  that  parliament  tliat  impendbed  tfai 
late  lord  Stafford,  there  had  been  an  11 
against  him  for  one  and  the  same 
by  the  same  reason  that  this  court  may 
Cecil,  his  majesty  may  appoint  a  high-  ' 


to  try  bv  a  juiy  of  peers.     For  the  court  h^ 
before  the  high-steward,  is  as  much  a  cant 
any  court  in  tlie  k'uigdom,  except  that 
liainent.     I  say,  suppose  the  king  had  a_ 
ed  an  high  stewani,  and  tliat  Imtl-h^^ 


ard  had  proceeded  against  my  lord  SuflhH,  I 
think  my  kird  Stafford  hail  been  alive  at  ttii 
day.  I^or  in  the  cose  of  treason  your 
knows  there  mnst  be  two  witnesses  ;  and  I 
sure  theiv  <>aine  in  fresh  testimony  against  WHf 
lord  Slafford  af^er  the  second  parliament  aftv 
thf>  imprachnient.  I  apfieal  to  tliose  noUs 
lonU  that  are  h<.Te,  if  it  were  not  so ;  and  htA 
it  not  been  for  t1i:it  fresh  testimony  that  CSBN 
in  afterwards,  |M»vsiblv  my  loni  ^^f^OId  miglt 
ha\e  l)een  alive  ut  this  tiiiie.  And  the  lioril 
in  I'arliaiiUMit.  as  I  hive  ubscr^-ed  in  thebenfrt 
uiii^r,  when  they  find  an  high  crime  bdM 
them,  \\  hen  they  find  sudi  u  general  cQnli« 
gious  dt\>i:^n  to  subvert  the  government,  ani 
yet  they  eaiiiKtt  come  to  cut  off  the  prindpri 
agents  in  this  design,  heeausc  periiape  them 
may  not  he  two  witnesses  in  strictness  of  Isw'll 
thetirst«  it  is  the  wisdum  of  a  parliament  todefi* 
liei-ate  anil  to  take  time.  The  giMMl  queen  wtf 
iisfdto  siiy,  truth  was  the  daughter  of  tiHM| 
und  lime  woiiUl  profiiice  tnith,  "^  \'entas  iUs 
*■  tem|K»ris.'  If  then  there  had  been  Uf 
such  liusty  prru'eeilini^s,  as  in  this  case,ldon6 
my  lord  Stafford  hud  \wnm  now  alive.  NoW 
tlien  for  these  lords  that  are  now  in  theTowfr^V 


Another  thing  1  woidd  say,  is  this  :  If  your 
lordship  should  ine<ldle  witli  this  way  of  pro- 
ceeding, it  will  invert  the  law  in  another  tJuiit;; 

for  it  is  a  principle  with  us,  that  no  m;m\  life  '  y<.i:r  lordship  do  goon  iw  this  way,  do  you  nSl 
is  to  lie  put  twice  in  danger  for  one  and  t\w.  |  o{K>n  sueli  a  i^^ap,  as  may  he  a  gnniud  toddiif^ 
same  thm&f.  I  i^ill  then  put  the  easo  thus  :  If  tliem  Ity  the  same  justiiv  (I  speak  it  under oof^ 
your  lordship  should  proret^l  upon  this  hidiet-  n  etion  here,  and  1  on'iv  otfcT  it  to  your  jwhpr 
ment,  and  this  i>ei'son  should  he  aefjiiitted  noon  j  nient,  litr  I  h::ve  not  haif  muny  hours  "to  consiMr 
it,  I  am  in  >  our  lordship's  judgment  nhether  of  it;  but  v  our  lordship  will  tliink  well  of  H 
tliat  ac*quittal  will  ]»iiid  the  Loids  in  Parlia-  |  before  you  give  any  judgment)  by  the  ssi^* 
ment ;  If  that  uill  not  bind  them,  but  they  may  I  justice  t-ie  other  lonis  may  be  tried  by  ai  '^ 
still  proceetl  on  the  impeachment,  then  \  uii  omrt  ?  This  I  ofler  in  point  of  rcoiion,  thi 
invade  that  c«mmion  right  whieh  e«ery  ling-  |  ]>recetiding  m  ill  Im*  very  hard,  and  is  an  ii 


anoll 
thatH 

^  .....  img  M  111  IM*  very  Imrd,  and  is  an  inipi^ 

lishnan  by  the  law  ought  to  have  presened  to  j  dent  thing,  if  not  an  Illegal  procoediug.    Mr 


J 


M9] 


STATE  TRIALS,  33  Crarlbs  II.  l6Sl.^Edward  Ftizharrh. 


[290 


lofd,  I  am  sure  it  will  hare  this  effect,  it  will 
■tir  op  a  qaestion  between  the  jurisdiction  of 
Ihif  court  and  the  oourt  of  parliament :  For  in 
all  probabilitjy  if  this  perMMi  should  bearc|uit- 
led,  the  ComnooBi  and  the  Lords  will  look  into  it. 
HiCT  are  «  oourt  that  make  a  survey  of  the  pro- 
ceounn  of  all  other  courts ;  and  they  i^ill  exa- 
mne  taia  proceeding,  or  at  least  may  do.  And 
if  be  be  mmd  guilty,  here- is  the  power  of  the 
CaronKNiB  in  impeaching,  and  the  jurisdiction 
of  the  Lords  in  trial  and  judgment,  taken  away 
bv  an  inferior  oourt  to  them,  and  so  stir  a 
between  this  court,  and  that  highest  of 
the  parliament.  And  what  will  be  tiie 
mre  of  that?  Tlie  judgment  of  that 
will  be  in  the  supenor  court,  for  there 
■  aa  Buddle  court  betucen  this  court  and  the 
faiiament  to  judge  of  it ;  tlierefore  I  submit  it 
Id  vaur  kHdships. 

Tbcae  an  tbe  things  which  I  offer  to  your 
hiUip  in  point  of  reason,  whereof  some  go  to 
the  pnidenee  of  the  tiling,  some  to  the  reason, 
■daase  to  the  ill  cunscnuences  that  may 
hajfta  npon  it,  and  I  thiiiK  many  to  the  ille- 
naly  af  the  act.  And  now  this  lieing  said  in 
tte  pBKnlf  I  come  to  the  particular  exccp- 
toaa  Bade  by  Mr.  Attorney  as  to  the  fonn  of 


Tfti 


FViapleaaed  to  say,  tliat  this  plea  was  a 
ftiiutwai  plea,  which  is  his  exception  in 
fal ;  and  be  gave  you  three  reasons  for  it 
Mfcn,  and  does  now  insist  upon  tlie  same  for 


Qte  was  diis,  and  he  insisted  npon  it  at  this 
tee,  Ubi  plen  does  not  set  forth  any  record  uf 
mlfu^himut,  nor  tlie  particular  matter  of 
lli«ai  Aii  eonrt  may  jucwe  of  the  reason  of 
it;  As  hr  compares  it  to  Uie  case  of  a  plea 
w  *aMv  fbitx  acquit.'  If  a  man  hath  been 
isCBMiad  acquitted^  he  may  plead  it  in  ano- 
thvsMR  tint  hath  jurisdiction  of  the  cause, 
iTAiltanin  indided  for  the  same  matter  : 
hi,  ay  taidv  first  of  all,  1  take  this  plea  to  be 
*ril|kadBd  in  form ;  and,  in  the  second  place, 
if  toe  be  any  informality  or  defect  (which  I 
^■rt  tripe  it  that  there  is,  but  if  there  were 
ijV  meh  thing),  I  take  it,  it  is  of  another  con- 
■iMiDii,  which  the  court  will  deliberate  lie- 
he  they  gifv  theiriudgment  on. 

Bat  I  say  in  the  first  place,  1  take  it  to  be  a 
i«y  md  plea,  and  that  it  is  good  according  to 
ti|hadiaij^  of  « anler  fiutz  acquit.'  In  plead- 
%tf  a  general  act  of  parliament,  we  need 
Mm  fiitth  the  act,  bnt  refer  to  tlie  record  ; 
wfll  depend  upon  the  method  of  im- 
ni  in  parliament,  wliich  I  am  of  opi- 
bow  the  general  law  of  parliaments,  tiiis 
\  mt^i/L  to  take  cojBpnizancc  of.  In  the 
lif^aafeer  fiiitaB  ac^iut,'  there  is  first  an  in- 
IHlMOoeedinffot  the  court  upon  the  plea, 
r  nl,  and  n  &r  arquittal,  and  a  record  of 
ii  SMiier.  If  now  this  person  comes  to 
tead  again  for  the  same  offencp,  there  is  a 
d  ftr  Un  to  plead  that  will  shew  forth  the 
"•■allv ;  andif  he  does  not  plead  thut 
ii  it  ia  his  own  dcAnh.  But  in  this  case 
iisBSiaAMCOid-'lo  plead,  and  there  is 
«0U  Till. 


the  mistake  upon  which  Mr.  Attorney  has 
gone  all  along.  And  you  must  in  this  case  bo 
goremed  by  the  ndc  and  inetlmd  of  {Nirliament, 
which  is  this :  The  Commons,  in  the  name  of 
themselves,  and  of  all  the  Commons  of  Eng- 
land, impeach  such  a  person,  and  they  bring  up 
this  impeachment  to  the  Lords  in  general,  and 
there  they  have  liberty  to  present  articles  in  doe 
time,  af\er  due  consideration,  which  ought  not 
to  be  done  hastilv.  All  this  is  no  record,  such 
as  may  be  had  in  the  case  of  *  auter  foitz 
'  acquit :'  For  first,  the  iini)cachment  of  iho 
Commons  is  no  record  ;  when  it  is  brought  up 
to  the  liords,  there  is  only  an  vnXry  into  tho 
Journal  of  the  Lords,  that  such  a  day  such  a 
person  came  from  the  |{ous4|  of  C'omm'ons,  and 
imiieached  such  a  one.  Aiid  you  are  not  to 
expect  the  same  strict  method,  and  form  of 
proceeding,  as  in  other  courts,  tho  courts  in 
Westminster-hall,  or  inftrior  courts.  Yonr 
lordship  in  this  case  must  be  governed  by  such 
pntceeding  as  is  in  parliament,  and  must  'take  it 
as  it  is  ;  and  we  have  said  enough,  ainl  as  much 
as  can  be  in  our  case.  "Wf"  have  not  indceil  set 
forth  an  indictment,  a  plea,  a  *  Venire  facias,' 
(Vc.  for  there  is  no  such  proceeding  in 
parliament ;  but  there  was  an  imiieachmeut  by 
the  Commons,  in  the  names  of  themselves  and 
of  all  the  Commons  of  England,  before  the 
Lords,  that  it  is  *  in  nieno  robore  et  efllectu,' 
and  that  it  was  *  secunuum  legem  et  consuetu- 

*  dinem  parUamenti,  pront  paiiet  inde  inter  rc- 

*  conla  remanen.'  &c.  And  here  is  enough. 
For  when  we  refer  you  to  a  record,  that  is  as 
much  as  if  we  had  set  forth  the  record  itsc^' ; 
for  we  tell  you  there  is  such  a  record,  and  wo 
point  you  to  the  place  where  you  may  find  it, 
and  so  we  take  it,  it  is  a  vcn-  full  plea  ;  and 
if  not,  it  is  as  much  as  any  man  f*an  plead  in 
such  a  case,  though  it  be  not  pleaded  particu- 
lariv. 

Aiid,  my  lord,  that  your  lonlsliip  is  to  judgo 
in  this  case  acoonling  to  the  methods  of  parlia- 
ment, I  depend  upon  the  authority  of  my  lord 
Coke ;  I  will  repeat  you  some  of  his  words : 
Speaking  of  the  law  of  parliaments,  he  says, 
and  he  liorrowed  it  out  of  Flcta,  That  tliis  high 
court  of  parliament  *  propriis  suis  legibus  et 

*  cmnsuetudinibuB  subsistit.     Et  ista  lex  ah  om« 

*  nibus  quoreuda,  a  multis  ignorata,  et  a  paucid 
'  coguita.'  But  he  tells  ynu,  and  certainly  ho 
says  true  in  it,  Whoever  'will  Ik*  U*amed  in  tli«i 
law  of  |>ariianieiitB  must  ro^iair  to  the  rolls  of 
iwrliamcnt :  And  give  nic  lt>a\  c  to  cite  liis  opi« 
iiion,  which,  I  hu|)e  may  be  of  grt-at  weight 
with  tliis  court :  It  is  in  tile  4tli  Institute,  f ul.  J  5^ 
he  says.  For  any  tliint^  iiiovimI  or  done  in  th^ 
House  of  Coniuums,  it  out;! it  to  be  determined, 
adjudgcf  1  an<l  disMrusKeii  by  the  course  of  parlia- 
ment, not  bv  tlH>  ci\il  law,  nor  vet  hy  the  com- 
mon Iuh  sot  this  ix'alni,  useil  m  mort*  inferior 
courts,  wliich  M-as  dcclaitHl  to  \w.  *  ser-nnduni 

*  legem  et  consuetudint'ni  [i:irliamenti,'  cob» 
ccming  the  {leers,  and  the  like,  pari  Vatione,  for 
the  Coinnions  ;  an<ltliat  stops  tliis  court  in  our 
case  :  Fur  so  it  is  Kiid  in  tills  ])U'n,  which  is  the 
matter  you  ara  to  be  governed  bv,  that  it  is  *  9e- 

U 


sgi]         STATE  TRIALS,  33  Chaclbs 

*  cundum  legem  et  eoiuiietiiilincfti  paTliktaenti. ' 
He  tdh  you  further,  Iheie  i*  no  notice  to  be 
ttkra  of  mny  thing  uid  or  done  in  the  Houie  of 
Coaunou,  but  bv  the  report  of  that  Hoiue,  and 
erery  member  thereof  hath  a  jixUciat  place  ; 
be  take)  it  oiit  of  Henry  7,  and  ao  the  book  is 
exprcKly.  And  he  i^oes  on  i  Thii  ia  thereason 
1^  Jo^KM  oujilit  not  to  pre  any  opinion  nf 
nwtlen  of  parliament ;  b^tiie  it  ia  not  to  be 
deeideil  1^  ihecommon  latra,  but'  aecundnm 

*  1eg<ein  et  cmiBuetuHiiiein  pnliamenti.'  8o  he 
lelU  you,  you  are  bound  by  the  methods  of 
parliainent ;  ond  I  need  not  preu  the  thing 
much  after  hiiHullrarityi  fiirhewaa  learned  in 
parliaiocnt  matlerij. 

But  I  would  craTF  leave  to  mention  a  case 
that  waa  laldr  in  this  court,  and  that  waa  the 
ease  of  my  lord  iif  Khafteabury,*  who  wm 
brought  In'  tliibras  Corpus  to  tliiacourt,  and 
upon  tiMt  Habeas  (JorpiLs  it  n'en  liius  retumeil, 
That  he  was  cnmmitteil  bv  order  uflhc  Lords  in 
pariiament,  there  til  remain  durini;  the  plpasure 
oftbekiuff  and  (if  the  House  of  Lords  ;  ami  this 
for  an  l^i  coutcmpt  cnminilted  in  that  House. 
Upon  thii  return  ive  iniisted  tliat  my  lord  might 
be  boilad,  because  itwasuncertnin,  the  pleasure 
of  the  kug,  or  the  Hourc  of  Lordx  ;  and  upon 
rendiiig  the  order,  thprc  is  no  crime  cxpresaed, 
'  bat  odyin^timl  for  an  high  contempt.  I 
■peak  it  Dot  lor  the  particular  caw's  rake,  but 
to  apply  the  reaiion  of  it  to  our  case  ;  the  rea- 
son then  giren  by  tlie  Juilg«M,  Wr.  Justicfe 
Jones  will  please  to  remember  it  (for  it  was  uar- 
licularly  declared  by  him)  why  they  could  not 
bail  my  kird,  was  this ;  he  was  pleased  to  say, 
Wein  thin  court  take  notice  of  (he  court  of  Ex- 
chequer, and  otiiercouris  iu  Heslmintiler-hall ; 
and  it  would  be  straiii^  if  we  should  nut 
take  iMtice  of  the  course  of  pariianicnt,  and 
House  of  Lords.  And  if  you  aiv  lioiind  so  to 
do  in  other  cases,  you  are  iHiund  to  do  so  in 
this.  And  If  wilhmit  pleading  you  take  notice 
of  tlie  oourae  of  thuEie  <'ourts,  you  will  also 
litkc  notice  of  tlie  law  of  jMrliunieiils,  and  cun- 
loms  of  parliaincnls.  And  (IJiat  I  may  make 
Ksc  of  it  to  our  puriNiw.'  iii  this  case)  we  need 
not  |iarliculurl;  »iiv,  '  KiTimihim  k;gi-m  ct  con- 
'  suetudiuem  'iKtrGnnM-nliiuhiir,'  instancing  in 
this,  and  that,  and  tin-  other  iwrtii-idar :  Hut 
Uieoourt  is  tuloukiiilo  it,  nitliont  luy  looking 
into  tlie  panieniar  law  of  pariiauutit.  *  !Jo  that, 
iny  loni,  here  is  ^^mund  i-n'Migli  befurethe  court, 
mid  I  know  the  court  uill  look  itito  it,  betbn; 
thi-y  ipve  jud<pucnt . 

'nii^  socuniT  eKoeiition  is  this,  Tliat  it  is  not 
Mid  in  the  Imdy  ot  tlie  plea,  that  Fivdiacm  is 
imp.idkml  for  this  treasim ;  but  it  comes  in 
only  ill  the  averment.  Now,  mv  lord,  as  Ici 
that,  we  mubl  purmie  the  iuipeacltmi-nl  as  it  is 
iutlu.' Lords  Jiiuruul.  li  is  ftw Ircuwin t;tii(<- 
rally  lh<-n>,  iind  it  is  said  1«  he  '  micundinn 
'  InJi'U'  et  cniiHuriuiluiein  parlianitviti,'  whjrh 
IpM'stoall,  and  then-  isareconlof  It  anions  the 
recordH  of  inrllameiit,  and  Mr.  .Attiiriiey  liath 
ConfeHwd  it  by  t1i(>  demurror. 


*  t>e«  vol.  6,  p.  13ro,  of  this  CuUet:ti'» 


n.  iSil-^PrMttHngi  tggimtt  [9gi 

And  that  this  is  the  nme  treason,  we  doara 
in  &CI,  which  alao  ia  confened  by  the  dcniw. 
rer;  andyour  lordship  win  He  l^the  reMi4i 
and  fiirms  of  cntriea  in  padiamaitjtinti  nn 
not  repeat  things  orer  and  over  agun)  Qiat  Ai 
is  the  course  aoJd  method  of  parliaAKDla. 

Mr.  Attom^  hath  ftncied  an  exccptian  tl 
grammar,  an  adjectire  (br  «  rabslauthe ;  b^l 
take  it  to  be  aa  wdl  u  any  man  can  field  p 
tbii  case.  For  what  aa)-i  the  ptiaoDerf  Tfci 
knights,  citiicn*,  and  burgMsei  in  pnriiiBfa 
asicmliled,  did  impcadi  DM',  wliidl  tuiiiiaj^ 
ment  is  still  in  force  before  the  Lordi,  Ifii 
ittobcasploiuas  can  be.  it  they  did  iiOMld 
me,  then  there  waa  an  impeachment ;  it  cM 
benr  no  otiier  sense.  ^ 

My  lord,  anotliCT  exception,  and  whicli  vw 
thotiglit  a  strong  oiie  the  otherday,  and  Mna|> 
ly  uTgid,  is,  that  the  kin^may  ctiuaeUiemt 
and  tliey  companat  it  with  the  other  aOMlfi 
But  there  ii  the  mistake  diat  run  aU  tlMfp 
tliis  case.  It  is  no  doubt,  tlie  king  mty  (kM 
his  court  fur  his  otni  action  and  •nit;  te.Ai 
unpeachment  in  an  impeaehment  at  tba  Om- 
moiu,  and  thdr  suit  is  to  be  tiiedaowbMdbi 
but  •□  narliament.  And  the  caae  Ibat  nf 
other  flay  cited  br  Mr.  Attorney,  for  tUa  f^ 
pose,  is  true  of  the  peiaon  that  waa  amlBid 
for  treason,  and  bath  been  indicted  anf  w 
raicned  in  Irdand,  and  he  may  be  ani^iil 
and  tried  hers,  there  ia  no  queation  <^ltit$ 
to  say,  then^fore,  that  this  ia  a  conaa^M^i 
from  that  rule,  that  therelbre  he  wiB  lHu 
whether  Iw  will  proceed  in  parliament  apn  Ai 
Cuminiina  impeachment,  and  put  a  atop  IB  tl 
proceeding  of  the  parliament,  by  ptoeatdhl 
in  this  court,  1  tidtc  to  he  a  gi«at  aon  nft'ilaF' 

Sly  lord,  I  hare  olfered  these  renagnB,H  M 
llic  torm  of  the  plea  to  maintain  it.  Now  M.li 
the  precedenU,  I  would  a  little  speak  what  W 
been  dine  in  tlic  like  case,  where  tbii  ^i^ 
halli  taken  hold  of  cau.'tcs,  and  (be  pmaccriiH 
of  tlie  court  hath  been  stopped  by  ptau  la  4i 
jurisdictiiin,  and  what  hath  been  done  1^ 
those  pli«e.  What  doom  they  have  bad,  I  ■! 
Iiiut  some  of  Uieni  toyou. 

There  was  a  case  mentioned  by  your  )atMl| 
the  (itlitT  day,  the  Inshop  of  Wint  htster^Mi 
3  Ud.:l.  1  dure  nut  say  1  have  looked  upon  ■< 
I'arliumcnt-ltoU;  but  inylunl  Ciiketelu  M^h 
lialh  itTJUil  (lie  rec<ird,  ■  de  verbo  in  lerboK: 
In  the  3il  Institute,  fol.    15.  th<>n-   Are  allai 

Cmcreding<i.  It  was  not  an  indictment,  llrffllj 
inl  Coko  contradicts  that,  and  says,  it  <n^- 
dcclatution ;  Tliere  the  record  at  latga  gf 
forth,  that  the  lushnp  of  Winchester  waiil 
tachcd  to  answer  the  king  ;  fur  tlial  nlwn^ 
aia  p:uliami'iit  held  at  Sanim,  it  waaonlaiMi' 
'  (wr  iiisuin  Itegera  nc  quis  hcI  Uom.  PtdBl 
■  mi'nt.  Muumonitas  ab  eodeiti  veccilrrM  Mm  C 
'  ctnlia  Hi'[;>B.'  And  tliat  t)''^'  biohop,  ia<^ 
tpm]it  of  the  king,  recistiit,  wiihuiit  leaieof  $ 
king.  I  tliink,it  is  rather  an  action  tbu)  a  a 
minal  nrocccdiog :    What   i 

this  f  He  comes,  and  Mya,      __  ^ 

'  erga  Dcniinum  Htatm  in PariiaatcntoM 
'  in  ParliaiiKuto  dmtcanigi  etM 


quia  dAMi 
iaatcntoaM 
etamendHC  - 


^J  STATE  TRIALS,  33  Chablbs  II.  \€sl,^Edwari  FtiiAmrit,         [29* 


*  Doa  dihi  in  minore  Curift  quam  in  Parliamen* 
'to,'  Sec.  What  becomes  of  this  pleaP  It  is 
there  should  be  such  an  inhibition,  that 
should -depart  without  leave  of  the  king 
bishop  be  punished  for  it ;  we  do  not 
ind  my  judgment  was  ffiven,  nor  would  thev 
nanoe  to  do  it.  My  lord  Coke  hatli  a  mailc 
vpsojl ;  for  this  reiy  reason,  it  looked  as  if  there 
Mi  a  designi  to  weaken  the  parliaments,  by 
Imnng'theur  proceedings  into  Westminster- 
tal,  nt  they  muld  not  <fo  it ;  they  would  give 
ipjujguicpt  fiir  the  king;  but  fur  aught  ap- 
foos*  the  plea  stood. 

Then  there  is  the  other  case  of  Mr.  Plowden, 
m^  many  mwe  in  primo  et  secundo  Phil,  et 
Mw.  mere  a   great   many  of  them,  some 
vftcfeof  were  bureeases,  and  they  submitted, 
lilt  he  did  noC    "Ae  information  there  is  this, 
Aal  theK  persons  were  sammoned  to  the  par- 
fiuMBL  and  departed  from  thence  without  the 
hm  of  the  Idng  and  queen,  though  it  was  pro- 
liicd  by  them  that  any  shouhl  depart :  Most 
(d  theBmbmit  to  a  fine  ;  and  if  it  nad  rested 
tktnt  it  nugfat  have  turned  to  the  prejudice  of 
fte  Commons  as  an  example. 
'   Bal  Hr.  Plowden,  he  pleads  as  one  that  un- 
Inlood  himsdf,  and  the  power  of  parliaments, 
md  theSr  proceedings  very  well,  and  considers 
.  A»  time  to  have  pleaded  m  :  Sa^-s  he,  I  con- 
fined in  the  parliament  from  the  beginning  to 
|he  end  of  the  paiiiament ;  but  he  relies  nut 
;  but  he  brings  a  traverse  full  of  preg- 
•  and  if  our  plea  be  faulty,  theirs  was  an 
Bd  times  as  faulty,  abigue  hoc^  That  he, 
.fiaMd  ^Edmund  Plowden,  the  said  day  and 
jmwmpji  die  inuil  parliament,  without  uoeuce 
4t  Iha  audJdngand  qiieen,  and  the  court  atbre- 
jiii  M I  ■■III  inptuously  depart  in  contempt  of 
fliafMkktf  and  queen,  and  their  command- 
awi  hI  iraibition,  and  to  the  great  detriment 
.  if  jkemunon-weal  and  state  of  this  kingdom, 

^.^Ifteie  things  he  pleads,  wliich  your  lord- 
ftanritobeaveryilltmverse;  andyettJiis 
.OKfldatimied  all  the  time  of  that  queen,  and 
.||ie€M>t  would  never  givejudgment  in  it  This 
«■■  fk  primo  et  secnndo ;    and  yet  it  appear- 
fiig«|Oii  iheface  of  the  information,  that  it 
ima  ease  thftt  omcemed'the  Commons,  the 
.flimtirouldiiot  givejudgment  for  or  against 
^'''^-       '"^    aaiMigas  the  lung  and  queen 


t^ere  ia  alalar  case,  and  that  is  Elliot's  case 
tCir^  '^nwreis  an  information  against  my 
Ifnl Hiilfia» nr  John  EOkity  and  many  more; 
ipl  ana  ia  a  plea  put  m  to  the  jurisdiction  of 
;  I  have  a  copy  of  my  k>rd  Hollis's 
ilis  in  a  manner  as  faulty  as  Plow- 
^  but  thecourt  m  that  case  does  not 
pivpon  flie  insofficiency  of  the  plea,  but  jfives 
jMBMBtgeneraOty  that  this  court  had  a  juris- 
metmi^  the  amauK  happened  in  parliament, 
aai  the  words  '.were  spcuCen  there ;  and  upon 
Kdemurror,  tiiey  gave  judgment  upon  the 
wUa'  nutfter.  What  becanae  of  that  judg- 
Mtf  .We haow  very  well  it  was  reversed,  19 

**^  See  YoL  3,  p.  394|  of  this  Collection. 


of  this  king.  And  pray  observe  the  proceed- 
ings  in  the  reversal  uf  "that  judgment.  Jiidf 
ment  was  given  against  niy  iorffllollis  and  the 
rest  of  the  gentlemen  ofthe  House  of  Com- 
mons, though  there  was  no  prosjicct  of  a  par- 
liament, yet  they  were  obstinate,  and  wuiikl  not 
plead  ;  tor  they  thought  the  judgement  to  be  a 
very  hard  jndjnnent ;  and  this  being  a  plua  in 
abatement,  judgment  was  given  for  want  uf  a 
plea  over.  It  may  i'all  out  in  this  case,  that 
this  person  may  be  obstinate,  and  not  plead 
over,  if  you  should  give  your  judgment  against 
this  plea.  In  Elliot's  case  they  were  finerf  se- 
verely, and  they  continued  undfer  this  judgment 
in  pnson,  and  in  execution  for  the  fine  a  great 
while ;  and  they  were  delivered  by  what  1  can- 
not indeed  justify  in  all  it*s  proceedings,  1  mean 
the  lonff-parlianient ;  but  what  was  donci  in  19 
of  this  Icing,  I  tliink  is  good  authority,  which 
none  can  say  but  was  a  parliament  as  useful  to 
the  king  and  kingdom  as  ever  could  be.  In 
that  parliament  tne  Commons  examined  this 
Judgment,  I  speak  because  1  luivc  it  in  my 
printed  book ;  it  is  in  Croke  Car.  I  confess,  it 
IS  not  in  the  first  impression ;  but  it  is  in  the  ae- 
conil  edition,  which  I  have,  and  these  are  the 
expresidonsinit 

£.  C.  /.  What  case  is  that  ? 

Mr.  Wiliiams,  It  is  in  Croke  Car.  181,  604, 
but  the  reversal  u'as  in  19  of  this  king. 

L^C,  J.  Was  the  judgment  given,  do  you 
say,  19  of  this  kini^r  Can  a  case  of  that  time 
be  reported  in  Croke  ? 

Mr.  Wiliianu.  I  do  not  say  so  absurd  a  thing 
If  your  lordship  will  have  patience  to  hear  me, 
I  will  tell  you  what  I  say.  My  book,  which 
ia  the  2d  impression  of  Croke,  reflecting  upon 
that  case  in  5  CaroU,  does  publish  the  Votes  of 
the  House  of  Commons  about,  and  the  reversal 
of  the  Judgment,  in  the  19th  of*  this  kin^« 
There  the  proceeding  is  this  ;  Information  is 
given  to  the  House  of  Commons,  that  there 
was  such  a  case  publisheil,  which  did  derogate 
much  from  the  privilege  of  parliament,  invad- 
ing the  liberty  of  speech  ;  and  the  House  of 
Commons  considering  the  conseouence,  or- 
dered the  book  to  be  sent  for  and  read,  and 
taken  into  consideration  and  debated ;  and  upon 
dc^te,  the  House  came  to  this  resolution. 
That  the  judgment  against  Elliot  and  others  is 
an  illegal  judgment,  and  against  the  freedom 
and  liberty  of  speech :  and  this  Vote  they  send 
up  to  the  Lords,  where  it  is  confiriiied  and 
resolved  in  agreement  with  the  Vote  of  the 
Commons  :  and  by  the  way,  in  answer  to  a 
l>aper  that  is  commonly  spn-ad  about  by  the 
name  of  *'  TlieObservator  ;"  1  say,  the  Com- 
mons came  to  a  Resolution,  and  pass  a  vote, 
which  is  not  indeed  a  law ;  and  when  they  have 
done  that,  they  may  transmit  their  opinions  to 
the  Lords,  anddesire  them  to  concur :  then  the 
Lords  and  Commons  have  a  Conference  upon 
it,  and  at  the